B.balakrishna Pillai Vs The Bar Council of India On 10 January, 2011

Madras High Court
Madras High Court

B.Balakrishna Pillai vs The Bar Council Of India on 10 January, 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10/01/2011
CORAM
THE HONOURABLE MR. JUSTICE S. MANIKUMAR
W.P.(MD) No.7936 of 2006
M.P.(MD)No.1 of 2006
B.Balakrishna Pillai
... Petitioner
Versus
1. The Bar Council of India,
rep. by its Secretary,
Rouse Avenue,
Institution Area, Near Bal Bhavan,
New Delhi 110 002.
2. The Bar Council of Tamil Nadu,
rep. by its Secretary,
High Court Campus, Chennai 600 104. ... Respondents
Writ Petition is filed under Article 226 of the Constitution of India praying for a Writ of Declaration,
declaring that the removal proceedings No.12/2000 pending before the 1st respondent herein, has deemed to
have been concluded in favour of the petitioner and consequently, not to give effect to the suspension order of
the second respondent in ROC.No.1070/2001, dated 29.08.2001.
!For Petitioner ... Mr.D.Rajagopal
^For 1st Respondent ... Mrs.J.Nisha Banu
For 2nd Respondent ... Mr.S.Muthukrishnan
:ORDER
Indian Kanoon - http://indiankanoon.org/doc/311315/ 1
The petitioner has sought for a Writ of Declaration, declaring that the removal proceedings No.12/2000
pending before the Bar Council of India, rep. by its Secretary, New Delhi, 1st respondent herein, as deemed to
have been concluded in favour of the petitioner and consequently, not to give effect to the suspension order of
the second respondent in ROC.No.1070/2001, dated 29.08.2001.
2. It is the case of the petitioner that he had completed B.A., Degree Economics in April 1981 in First Class.
Thereafter, he registered his educational particulars with the Employment Exchange, Nagercoil, which he
renewed till January' 1994. As he did not get any suitable job, he was forced to work as an Advocate Clerk in
1993-94 and having gained experience as an Advocate Clerk, he intended to study law course and
accordingly, on 14.06.94, he joined the LLB course (evening class) in SLSRC Havanur College of Law,
Bangalore, a recognised college, affiliated to Bangalore University.
3. The petitioner has further submitted that he
regularly attended the classes during the Academic years 1994-95, 1995-96 and 1996-97 and completed LLB
Degree in April 1997. A Provisional Degree certificate was issued on 15.10.1997 by the Principal, SLSRC
Havanur Collage of Law, Bangalore and thereafter, he was issued a convocation certificate on 03.03.1998, by
the Bangalore University and that the same approved by Bar Council of India. On completion of LLB Course,
he applied for enrolment as an Advocate before the Bar Council of Tamil Nadu and that he was admitted as a
Pre- enrollment Trainee on 24.11.1997. He was assigned Trainee No.2250.
4. The petitioner has further submitted that his
Enrollment application was duly attested by the President of Nagercoil Bar Association, Mr.P.Selvaraj. On
completion of one year of Pre-enrolment training in the District Court and Subordinate Courts in Nagercoil,
due paper publication was effected on 04.12.1998 in Dinakaran Tamil Daily, calling for objections, if any, to
his enrolment as an Advocate. As no objection was received, he enrolled as an Advocate on 29.01.1999, after
complying with the mandatory requirements contemplated under law. His enrolment number is 41/1999.
Thereafter, he also became a member of the Bar Association, Nagercoil and started practicing as an Advocate
and also exercised his vote in the Bar Council Elections.
5. While that be so, after 3 years of completion of
his Degree course, a complaint has been given on 26.08.2000 to the Bar Council of Tamil Nadu against four
Advocates, including the petitioner, alleging that during our course of study, they did not regularly attend the
LLB Course and that they were working as Advocate Clerks, attached with the Counsel, practising in
Nagercoil courts and attended the courts. The complainant also requested the Bar Council of Tamil Nadu to
take necessary action. Pursuant to the said complaint, the Bar Council of Tamil Nadu issued a notice under
ROC No.1185/2000, dated 05.09.2000 to the petitioner, to show cause, as to why, his name should not be
struck off from the rolls of the Bar Council of Tamil Nadu and why action should not be initiated against the
petitioner and some others, under the rules of the Bar Council and in this regard, directed the petitioner to
submit his explanation on or before 20.09.2000.
6. The petitioner has further submitted that on
receipt of the show cause notice, he submitted his explanation on 18.09.2000 and the same was forwarded to
the Bar Council of India for further action. An enquiry was ordered to be conducted by the State Bar Council
of Tamil Nadu, by the Bar Council of India under Removal proceedings No.12/2000. Similar Removal
proceedings were also ordered to be initiated in respect of three others, under Removal Proceedings No
6/2000, 10/2000 and 11/2000 respectively. The Bar Council of Tamil Nadu, referred the matter to the
Enrollment Committee and under a common notification in ROC No.1070/2001, dated 29.08.2001, the
petitioner and three others were placed under suspension, till the disposal of the removal proceedings.
7. The petitioner has further submitted that the
Disciplinary Committee of Bar Council of Tamil Nadu conducted an enquiry into the allegations levelled
against them. The petitioner pleaded before the said committee that he was working as an Advocate clerk, at
Nagercoil under one Mr.G.Ramakrishnan, Advocate from 1981 to 1994 and that he joined SLSRC Havanur
College of Law, at Bangalore in the year 1994 and completed the course in 1997 and obtained LLB Degree.
He also submitted that while he was undergoing the course of study, he was staying at Hosur near Bangalore
with his younger sister, Mrs.V.Lakshmi. He also produced the attendance certificate issued by SLSRC
Havanur Collage of law to prove that he attended the classes regularly and that he did not work as an
Advocate clerk during that period and therefore, pleaded to drop the removal proceedings.
8. The petitioner has further submitted that the Bar Council of Tamil Nadu submitted a common report, dated
07.06.2003, in all the Removal Proceedings, including Removal Proceedings No.12/2000, initiated against the
petitioner, holding that the LLB Degree obtained by him and others may be valid for any other purpose, but
that will not entitle them to enrol as Advocates and since they have already been enrolled by the Bar Council
of Tamil Nadu, as Advocates, they are liable to be removed from the rolls of Bar Council of Tamil Nadu.
9. Pursuant to the said enquiry report, the Bar
Council of India issued a notice, dated 25.09.2003/26.09.2003 to show cause as to why, petitioner's name
should not removed from the Rolls of the State Bar Council of Tamil Nadu and called upon him to send a
reply, by 23.10.2003. Accordingly, he submitted a reply dated 17.10.2003 to the Bar Council of India. On
receipt of the same, the Bar Council of India directed him to appear before the Council on 09.11.2003, which
was subsequently postponed to 22.02.2003. He appeared before the Bar Council of India on 22.02.2004 and
thereafter, nothing had happened.
10. In the meanwhile, an advocate against whom,
similar Removal proceedings were initiated, has approached this Court and obtained stay of the suspension
order, dated 29.08.2001, in W.A.M.P.No.2991/2003 in W.A.No.2127/2003. Yet another person against
whom, similar removal proceedings were initiated, has filed Writ Petition in W.P.No.3005/04, to issue a Writ
of Declaration, declaring that the removal proceedings No.11/2000, pending before the Bar Council of India,
as deemed to have been concluded, in his favour and consequently, not to give effect to the order of
suspension, made in ROC.No.1070/2001, dated 29.08.2001. This Court, by an order, dated 26.07.2006, has
quashed the removal proceedings and permitted the Writ Petitioner therein to continue the legal profession.
11. In these circumstances, the petitioner has come up with the present Writ Petition, contending inter alia that
he had attended the classes regularly, during the years 1994-95, 1995-1996 and 1996-97, as per the
requirement of the Bangalore University. It is his further submission that regarding academic matters, the
College is the authority to say, as to whether, the petitioner had attended the classes regularly, during the
course period. He further submitted that Section 24 of the Advocates Act 1961, prescribes the conditions and
qualification of a person to be admitted as an Advocate on the State roll. But the said Section is silent about
the minimum attendance of the lectures on each of the subjects and also at tutorials, moot courts and practical
training course. However the Bar Council of India Rules, Part IV, Section B Rule 3 prescribes the requirement
of minimum attendance of 66% of the lectures, on each of the subjects, as also at tutorials, moot courts and
practical training course. He therefore submitted that the rules, being procedural, shall not take away the
substantial rights conferred on him to claim the benefit under section 24 of the Advocates Act.
12. The petitioner has further submitted that on securing LLB Degree, application for his enrolment as an
Advocate was made as per the provisions of section 25 and 26 of the Act and on due enquiry and scrutiny of
the same, he was enrolled as an Advocate and even, the Bar Council of India, at its meeting held on 1st and
2nd April 2001, has considered the question of eligibility of those students for enrolment as Advocates, who
have completed the LLB Degree and decided that students who have obtained LLB Degree from SLSRC
College of Law Bangalore, prior to the academic year 1998-99 may be allowed to be enrolled as Advocates.
13. The petitioner has further contended that under section 36-B of the Advocates Act, any disciplinary
proceedings initiated by the State Bar Council shall be concluded, within a period of one year from the date of
receipt of the complaint or the date of initiation of the proceedings, at the instance of the State Bar Council,
failing which, such proceedings shall stand transferred to the Bar Council of India. The said Section prescribes
no time limit for the conclusion of the proceedings. But the same should be completed expeditiously. It is the
grievance of the petitioner that eventhough the 1st Respondent has conducted the enquiry on 22.02.2004, till
date no orders have been passed. In such circumstances, as per the orders of this Court made in W.P.No.3005
of 2004, he is entitled to seek for a similar relief granted in the above writ petition. According to him, he
cannot be kept under suspension for a prolonged period. For the abovesaid reasons, he has prayed for the
relief as stated supra.
14. Though notice has been served on both the
respondents, no counter affidavit has been filed. However, Mrs.Nisha Banu, learned counsel for the first
respondent, Bar Council of India, submitted that the Secretary of the Nagercoil Bar Association has filed a
complaint on 26.08.2000 to the Secretary, Bar Council of Tamil Nadu against four lawyers that they have
been working as advocate clerks and finished law degree without attending the class. The said complaint
along with the explanation given by the applicants, including the petitioner, were forwarded to the Bar
Council of India for taking necessary action. The Bar Council of India, vide its letter, dated 02.05.2001, had
remanded the matter back to the Bar Council of Tamil Nadu for conducting a detailed enquiry.
15. Learned counsel for the first respondent further
submitted that the Secretary of the Nagercoil Bar Association, in his complaint, dated 25.08.2001, has
requested the Enrolment Committee to suspend the advocates, against whom enquiries were pending till the
enquiry was over. The Enrolment Committee of the Bar Council of Tamil Nadu accepted the request of the
Secretary of the Nagercoil Bar Association and suspended the following four advocates from practice: -
1. Mr.E.Chithambarahanu Pillai
2. Mr.J.Parameswaran Thambi
3. Mr. R. Subramonia Pillai
4. Mr.B.Balakrishna Pillai (Petitioner herein)
Thereafter, the Enrolment Committee has sent a recommendation to the Bar Council of India, through the Bar
Council of Tamil Nadu, vide its letter in R.O.C.No.1060/2001, dated 28.08.2001.
16. Learned counsel for the first respondent further submitted that in continuation of the above mentioned
letter, the Secretary of the Bar Council of Tamil Nadu, through his letter in R.O.C.No.1073/2001, dated
30.08.2001, has informed the Bar Council of India that the four advocates, including the petitioner, have been
suspended from practice as advocates, till the proceedings are over and also requested the Bar Council of
India to ratify the action of the Enrolment Committee in this regard. In the mean while, the Bar Council of
Tamil Nadu, has requested the Bar Council of India to give some more time to file the enquiry report and
finally, submitted its enquiry report, vide letter No.R.O.C.No.379/2003, dated 10.06.2003. The said Enquiry
Report was placed before the Bar Council of India, at its meeting held on 24.08.2003. After consideration of
the same, the Council issued Show Cause Notices to the concerned advocates.
17. She further submitted that on receipt of the show cause notices, the abovesaid four advocates, including
petitioner submitted their replies. Thereafter, the Bar Council of India directed them to appear in person or
through their Counsel before the Bar Council of India, at its meeting on 22.02.2004. In the meantime, the Bar
Council of Tamil Nadu, by letter No.R.O.C.No.305/2006, dated 18.04.2006, has informed the Bar Council of
India that Mr.E.Chithambarahanu Pillai, Mr.J.Parameswaran Thambi and Mr.R.Subramonia Pillai filed Writ
Petitions in Madurai Bench of this Court and obtained interim stay. It was also informed that in respect of the
petitioner herein, no case was pending at that time.
18. Learned counsel for the first respondent, Bar Council of India further submitted that the Bar Council of
India, vide its letter No.BCI:D:81/2007, dated 05.01.2007, has directed the petitioner to appear before the
Council on 22.01.2007. In response to the same, the petitioner also sent a reply to the Bar Council of India
that he has obtained interim stay on 19.01.2007 before the Madurai Bench, in this Writ Petition. Therefore, the
Bar Council of India, at its meeting held on 20/21.01.2007, after considering Removal Proceeding
No.12/2000, in respect of the petitioner and also the letter received from his Counsel, has decided as follows: -
"Ms A.Sumathi, advocate appeared on behalf of
shri.S.Balarkrishna Pillai and informed the Council that Shri Balakrishna Pillai had filed a Writ Petition
challenging the removal proceedings pending before the Bar Council of India and it is informed that a stay of
the proceedings has been obtained by Shri Balakrishna Pillai and therefore he wants the proceedings to be
deferred till the Writ petition is decided. Accordingly, the removal proceedings No. 12 / 2000 Is deferred
pending disposal of the writ petition filed by him in the Madras High Court (Madurai Bench)."
19. Learned counsel for the first respondent submitted that in view of the pendency of the Writ Petition, no
further action could be pursued in the Removal Proceedings. She further submitted that as there is no specific
time limit prescribed under Section 36 of the Advocate's Act for conclusion of the removal proceedings, the
same cannot be declared as deemed to have been concluded in favour of the writ petitioner.
20. Learned counsel for the first respondent further
submitted that the order made in W.P.No.3005/04, dated 26.07.2006, cannot be cited as a precedent, for the
reason that the contention that Section 36 of the Act does not impose any time restriction in concluding the
removal proceedings, has not been adverted to by this Court. It is her further contention that in the above Writ
Petition, earlier, the petitioner therein had filed a Writ Petition in W.P.No.11004 of 2002, challenging the
order of Bar Council of Tamil Nadu and this Court, by an order, dated 02.12.2003, directed the Bar Council of
India to pass orders on the removal proceedings No.11 of 2000, pending against the petitioner therein, within
a period of two months from the date of passing of the order and since no orders were passed for nearly two
years, this Court has declared that the removal proceedings pending against the petitioner therein as deemed to
have been concluded. For the above said reasons, she prayed for dismissal of the Writ Petition.
21. Before adverting to the facts of this case, it is relevant to have a cursory look at the provisions relating to
the qualifications prescribed for enrolment as an Advocate under the Advocates Act, 1961 and Bar Council of
India Rules.
22. Advocates Act, 1961, was enacted to have a conslidated law relating to legal practitioner and to provide
for the constitution of Bar Councils and an All India Bar Council. Among other main features of the Act, one
of the main feature of the Act is that the prescription of a uniform qualification for admission of persons to be
enrolled as advocates. Chapter 2 deals with Bar Councils. Section 3 of the Act deals with State Bar Councils.
Section 4 of the Act deals with Bar Council of India and as per the said Section, there shall be a Bar Council
for the territories, to which, the Act extends, to be known as the Bar Council of India. The functions of the Bar
Council of the State are enumerated in Section 6 of the Act, which includes, "(a) to admit persons as
advocates on its roll.
(b) ...............
(c) to entertain and determine cases of misconduct against advocates on its roll.
(d) .........
(e) ........
(f) .........
(g) .........
(h) to perform all other functions conferred on it by or under this Act."
23. The relevant clauses in Section 7(c) of the Act are extracted hereunder:
"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 interest of advocates
e. To promote and support law reform
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
(ic) to recognise on a reciprocal basis foreign qualifications in law obtained outside India for the purpose of
admission as advocate under this act.
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."
24. Section 24 of the Advocates Act, speaks about persons, who may be admitted as advocates in the State
rolls and the same is extracted hereunder:
"24. Persons who may be admitted as advocates on a State roll:-
(1) Subject to the provisions of this Act. And rules made thereunder, a person shall be qualified to be admitted
as an advocate on a State roll, if he fulfills the following conditions, namely:- a. he is a citizen of India:
Provided that subject to the other provisions contained in the 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 practice 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 [(Note:- Subs. by Act 60 of 1973, sec.18, for the words "28th day of February,1963" 12th day of
March, 1967] from any University in the territory of India, or
ii. before the 15th 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. [Note:- Subs. by Act 60 of 1973, sec.18, for clause (iii)) after the 12th day of March, 1967, save as
provided in sub clause after undergoing a three years course of study in law from any University in India
which is recognised for the purpose of this Act by the Bar Council of India, or (iiia) after undergoing a course
of study in law, the duration of which is not less than two academic years commencing from the academic
year 1967-98 or any earlier academic year from any University in India which is recognised for the purpose of
this Act by the Bar Council of India, or] [(Note:- Subs. by Act 60 of 1973, sec.18, for the words "he is a
barrister".) he is barrister and is called the Bar and on before the 31st day of December, 1976
[(Note:- Ins. by Act No.107 of 1976, sec.6) "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.] iv. (Note:- Ins. by Act 21 of 1964 sec.13) In any
other case, from any University outside the territory of India, if the degree is recognised for the purpose of this
Act by the Bar Council of India or (d) (Note:- Clause (d) omitted by Act 60 of 1973, sec.18) e. he fulfills such
other conditions as may be specified in the rules made by the State Bar Council under this Chapter. f. [(Note:-
Clause (f) subs. by Act 60 of 1973, sec.18) he has paid, in respect of the enrolment, stamp duty, if any,
chargeable under the Indian Stamp Act, 1899, and an enrolment fee payable to the State Boar Council of
[(Note:- Subs. by Act 70 of 1993, sec.6) 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 Schedule Castes or the Scheduled Tribes and produces a
certificate to the effect from such authority as may be prescribed, the enrolment fee payable by him to the
State Bar Council shall be [(Note:- Subs. by Act 70 of 1993, sec.6) one hundred rupees and to the Bar Council
of India, twenty-five rupees.] [Explanation - (Note:- Ins. by Act 14 of 1962, sec.2) For the purpose 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) [(Note:- Subs. by Act 21 of 1964, sec.13, for certain words.) 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. fulfills the conditions specified in clauses (a), (b) and (f) of sub-section
(1).
(3) [(Note:- Sub-sections (3) and (4) ins. by Act 21 of 1964, sec.13) Notwithstanding anything contained in
sub-section (1) a person who- a. (Note:- The words "before the 31st day of March,1964 and then in force"
omitted by Act 33 of 1968, sec.2) 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 (Note:- The words "before the 31st day of March,1964 and
then in force" omitted by Act 33 of 1968, sec.2) 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. [(Note:- Sub-clause (aa) ins. by Act 60 of 1973, sec.18) before the 1st day of December, 1961 was entitled
otherwise than as an advocate to practice 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.
a. [(Note:- Sub-clause (b) omitted by Act 60 of 1973, sec.18)].
b. Court in any area which was comprised within Burma as defined in the Government of India Act, 1935 or
c. 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 provision s of this Act, and
i. fulfills the conditions specified in clauses (a), (b), (e) and (f) of sub-section (1).
1. [(Note:- Sub-section (4) omitted by Act 107 of 1976, sec.6)]"
25. Section 36-B deals with the disposal of the disciplinary proceedings and it reads as follows:
"36B. Disposal of disciplinary proceedings- (1) The disciplinary committee of a State Bar Council shall
dispose of the complaint received by it under Section 35 expeditiously and in each case the proceedings shall
be concluded within a period of one year from the date of the receipt of the complaint or the date of initiation
of the proceedings at the instance of the State Bar Council, as the case may be, failing which such proceedings
shall stand transferred to the Bar Council of India which may dispose of the same as if it were a proceeding
withdrawn for inquiry under sub section (2) of section 36. (2) Notwithstanding anything contained in sub
section (1) where on the commencement of the Advocates (Amendment) Act, 1973, any proceedings in
respect of any disciplinary matter against an advocate is pending before the disciplinary committee of a State
Bar Council, that disciplinary committee of the State Bar Council shall dispose of the same within a period of
six months from the date of such complaint, or, as the case may be, the date of initiation of the proceedings at
the instance of the State Bar Council, whichever is later, failing which such other proceeding shall stand
transferred to the Bar Council of India for disposal under sub-section."
26. The disciplinary committee of the Bar Council shall have the same powers, as are vested in a civil court
under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the matters enumerated in Section 42 of the
Act. Section 49 of the Act deals with general power of the Bar Council of India to make rules for discharging
its functions under the Act and in particular, such rules may prescribe,
"a. (Note:- Clause (a) subs. by Act 21 of 1964, sec.20) the conditions subject to which an advocate may be
entitled to vote at an election to the State Bar Council, including the qualifications or disqualification of
voters, and the matter in which an electoral roll of voters may be prepared and revised by a State Bar Council.
.................
(af) [(Note:- Clause (af) subs. by Act 60 of 1973, sec.38) the minimum qualification required for admission to
a course of degree in law in any recognized University.]
(ah) the conditions subject to which an advocate shall have the right to practice and the circumstances under
which a person shall be deemed to practice as an advocate in a court.
..........
c. The standards of professional conduct and etiquette to be observed by advocates.
d. The standards of legal education to be observed by university in India and the inspection of Universities for
that purpose."
27. Bar Council of India Rules have been framed in exercise of rule making powers under Advocate's Act,
1961. Part IV of the Rules deals with the courses leading to grant of LLB Degree. As per the rules, there shall
be two streams of law courses leading to LL.B. Degree viz. a five year and a three year law course for the
purposes of enrolment as advocates as prescribed under the Rules contained in Section-A and Section-B
respectively. As per Clause 2(b) and (c) of Section-A of the Rules contained in Part-IV, pertaining to five year
course of law after 10+2 or 11+1, the law degree has been obtained after undergoing a regular course of study
in a duly recognised law college under these rules for a minimum period of five years, out of which the first
two years shall be devoted to study of pre-law courses as necessary qualifications for admission to three year
course of study in law to be commenced thereafter. The last six months of the three years of the law course
shall include a regular course of practical training. That the course of study in law has been by regular
attendance for the requisite number of lectures, tutorials, moot courts and practical training given by a college
affiliated to a University recognised by the Bar Council of India.
28. As per Clause (4) of the Rules, the students shall be required to put in a minimum attendance of 66% of
the lectures on each of the subjects as also at the moot courts and practical training course. Provided that in
exceptional cases, for reasons to be recorded and communicated to the Bar Council of India, the Dean of the
Faculty of Law or Principal of law colleges may condone attendance short of those, if the students have
attended 66% of the lectures in the aggregate for the semester or annual examination, as the case may be.
29. Section B to Part IV of the abovesaid Rules deals with Three year law course, after graduation. Similar to
LLB course, this course of study in law should be by regular attendance with the requisite number of lectures,
tutorials or moot courts in a college recognised by a University.
30. The core issue centres around the contention as to whether the petitioner had attended regular classes at
Bangalore and satisfied the important criteria, viz., regular course with the minimum attendance in the
subjects, as per the statutory rules. The petitioner has also submitted that rule 24 of the Bar Council of India
Rules, cannot override the statutory provision contained in the Act. Therefore, it is necessary to consider some
of the cases on this aspect.
31. In L.Meenakshi Sundaram v. Director of Legal Studies reported in 1981 (II) MLJ 141, a Division Bench
of this Court considered a case, as to whether a student, who had completed correspondence course in BGL
degree conducted by Kamaraj University is eligible to pursue the third year B.L., Degree course. He
challenged the rejection of his candidature, on the ground that acquisition of BGL degree, through
correspondence, would not be considered as equivalent to pursue B.L. Degree course in the University, is not
correct. The rejection made by the Registrar of University of the Madras, was based on a resolution of the
Syndicate of the University, which referred to a letter of the Bar Council of India. While considering the
powers of the Bar Council of India to frame rules, to promote legal education and to lay down the standards of
education, for the purpose of recognition of the course, eligible for admission to the rolls of the Bar Council, a
pre-requisite to practise as an Advocate, the Division Bench, at Paragraphs 10, 11, 13, 15 & 16, held as
follows:
"The expression "to lay down standards of such education" occurring in Section 7(1)(h) of the Advocates Act
is capable of taking in every ingredient which will go to constitute the end or ultimate level of education that
is expected of a candidate who applies for enrolment as an advocate under the Act.
The Court was unable to agree that the expression "standards of such education" occurring in Section 7(1)(h)
of the Act in any way whittles down or narrows down the scope of the functions of the Bar Council of India,
so as to take away from such functions the right to lay down a prescription that the course must be a regular
course in the sense that the students are required to attend regular classes and to put in certain percentage of
attendance. The argument that "standards of such education" occurring in Section 7(1) refers only to the
excellence of the education aimed at and will not take in any other matter such as whether the course should
be a regular one or may be by correspondence or how much attendance a candidate should have put in cannot
be accepted. (Para 10)
Section 24(1) of the Advocates Act opens by saying that the provisions contained therein shall be subject to
the provisions of this Act and the rules made thereunder. Consequently, the expression "a three year course of
study in law", occurring in Section 24(1)(c)(iii), has to be read subject to the rules framed by the Bar Council
of India, and if so read, there is absolutely no inconsistency between the rules framed by the Bar Council of
India and the statutory provisions contained in Section 24 (1)(c)(iii) of the Act. (Para 11)
It is not possible to hold that there is no difference between the B.G.L.Degree of the Madurai Kamaraj
University obtained after pursing the correspondence course and the degree obtained after attending regular
classes. If so, there is absolutely no scope for the invocation of Article 14 of the Constitution at all, because,
from the very nature of the case, the two degrees are not identical or equal.
(Para 13)
The Constitution itself provides that any law relating to professional qualifications necessary for practising
any profession or carrying on any occupation, trade or business will be valid and not in any way derogatory to
the right of a citizen under Article 19(1)(g). (Para 16)
The prescription made by the Bar Council of India in the rules framed by them regarding attendance in a
regular course in a college or the prescription regarding a particular percentage of attendance at such lecturers
in law relating to professional qualification necessary for practising the profession of an advocate is
consequently saved by Article 19(6) of the Constitution of India. (Para 15)"
32. As regards the contention of the petitioner that since the removal proceedings have not been completed
within one year from the date of institution and therefore, it should be deemed to have been completed in
favour of the petitioner, it is relevant to consider some of the decisions. In Karnataka State Bar Council v.
H.Subramanya Jois reported in AIR 1993 Kar 7 (DB), the respondent therein sought for quashing a resolution
of the Bar Council of Karnataka, by which, the case of the respondent was referred to a Disciplinary
Committee. The Disciplinary Committee took the case on file. An objection was made by the
respondent-Advocate that the complaint ought to have been disposed of within a period of one year from the
date of receipt of the complaint by the Bar Council and therefore, the Bar Council had no competence to refer
the complaint to the disciplinary committee. The objection of the respondent was rejected by the disciplinary
committee. Thereafter, a Writ Petition was filed, challenging the same. A learned Single Judge accepted the
petitioner's contention, by holding that the purpose of the period of limitation prescribed under the Advocates
Act, 1961 is to require an early and expeditious disposal of the complaints against an Advocate and therefore,
the period of one year prescribed under Section 36-B of the Act has to be computed from the date of the
receipt of complaint by the Bar Council and not from the date of the reference of complaint to the Disciplinary
Committee. Rejecting the contentions of the respondent therein, the Division Bench of Karnataka High Court,
at Paragraphs 7, 8, 9 and 10, held as follows:
"7. The disposal of the complaint referred here is to be by the Disciplinary Committee; the mandate of the
provisions of Section 36(1) is clearly directed to the Disciplinary Committee requiring it to dispose of the
complaint. However, the petitioner's contention was that the words -- "in each case the proceeding shall be
concluded within a period of one year from the date of receipt of the complaint" --in Section 36(1) are to be
understood, as referring to the complaint received by the Bar Council, and not by the Disciplinary Committee.
This overlooks the content of Section 36(1); subject matter of Section 36(1) is the disposal of the case may by
the Disciplinary Committee. Case may be referred to the Disciplinary Committee, either on receipt of the
complaint by the Bar Council or by the Bar Council suo motu. When a case is referred by the Bar Council suo
motu (without any complaint being received by it), then, certainly the Disciplinary Committee is given an
year's time from the date of reference to conclude the proceedings before it; this is very clear from the words
"shall be concluded within a period of one year from..... the date of initiation of the proceedings at the
instance of the State Bar Council". If so, naturally, a different period of limitation to conclude the proceedings
by the Disciplinary Committee, when it is a case of a reference of a complaint, could not have been thought
of. At any rate, a plain reading of Section 36(1) conveys the meaning that the period of one year, is the period
provided to consider the proceedings by the Disciplinary Committee and, therefore, such a period would
commence only when the proceedings of the Disciplinary Committee are initiated and not earlier. 8. Rule
17(2) makes the position further clear. It reads :
"The date of receipt of the complaint or the date of the initiation of the proceedings at the instance of the State
Bar Council shall be the date on which the State Bar Council refers the case for disposal to its Disciplinary
Committee under Section 35(1)."
Confining the above words to the instant case, Rule 17(2) would read: "The date of receipt of the
complaint..... shall be the date on which the State Bar Council refers the case for disposal to the Disciplinary
Committee under Section 35(1)."
9. Rule 17(2) actually identifies the relevant date. It points out that in the case of a complaint, the date of its
receipt is not the actual date when the Bar Council received it, but, it is the date on which the case is referred
to the Disciplinary Committee for disposal. It is impossible to understand this Rule in any other manner.
10. If the case is not disposed of within the prescribed period, proceedings are to be transferred to the Bar
Council of India under Section 36(1). For this purpose, Rule 17(1) requires the Secretary of every State Bar
Council to furnish the relevant particulars to the Bar Council of India. It is in this context Rule 17(2) clarifies
that the "date of receipt of the complaint" shall be the date on which the case is referred to the Disciplinary
Authority, so that if proceedings are not completed within one year from the said date, the case shall stand
transferred to the Bar Council of India."
It is to be noted in the above reported case that even if the proceedings referred to the Disciplinary Committee
were not completed within one year, the case has to be transferred to the Bar Council of India and it is
categorically held that the proceedings cannot be declared as abated.
33. In Rattan Singh, I.A.S. v. Bar Council of India
and others reported in 1994 (2) SCC 102, a Civil Appeal and a Writ Petition were disposed of by a common
order. Facts of the Civil Appeal are that the first respondent therein was a post-graduate in Political Science
and Modern History, undertook studies in LL.B. course in Calcutta University, as a non-collegiate woman
candidate under Regulation 35 of the Calcutta University, First Regulations, 1951 framed under the Calcutta
University Act, 1951. She was conferred a law degree in terms of Regulation 35 by the Calcutta University
and she applied to the Bar Council of West Bengal, for enrolment as an Advocate. However, she was
informed by the Assistant Secretary of the Bar Council that she was not entitled to be enrolled, as she did not
fulfil the condition of Rule 1(1)(c) of Part IV of the Bar Council of India Rules, 1975. Coming to know of
rejection of her application for enrollment, she challenged the vires of the rule itself.
34. Insofar as the writ petition is concerned, the Writ Petitioner therein, passed his Bachelor of Arts
examination in 1953 and acquired a Master's degree in Economics in 1956 and joined the Punjab Civil
Service, Executive Branch, on May 8, 1957. As a member of the civil service, he exercised quasi-judicial
powers in different capacities for some time and on the basis of a resolution of the Executive Council of the
Kurukshetra University and the Academic Council, vide resolutions Nos.30 and 33 respectively, dated
September 15, 1973, the petitioner had undertaken a three year L.L.B (Professional) course and secured a
degree in 1978. He decided to quit the Government service and thereafter, applied for enrolment as an
Advocate paying the fee of Rs.250 for such enrolment. In that application, he made it clear that he would
resign from government service, as soon as his eligibility for enrolment as an Advocate was determined. This
case was referred to the Bar Council of India and the decision was awaited from the latter. However, there
was no response. When he came to know that no non-collegiate degree-holder had ever been enrolled, since
September 6, 1975, the date on which the Rules came into force, as an Advocate, he thought it futile to await
and filed a petition under Articles 32 and 19(1)(g) of the Constitution of India. On the above facts of both
cases, the Supreme Court, at Paragraphs 11 to 17, held as follows: "11. We may now reproduce Sub-rule (1)
of Rule 1 of Part IV of the Rules as it stood at all material times."
1 (1) Save as provided in Section 24(1)(c)(iiia) of the Act, a degree in law obtained from any University in the
territory of India after the 12th day of March, 1967 shall not be recognised for purposes of Section
24(1)(c)(iii) of the Act unless the following conditions -are fulfilled: (a) That at the time of joining the course
of instruction in law for a degree in law, he is a graduate of a University, or possesses such academic
qualifications which are considered equivalent to a graduates' degree of a University by the Bar Council of
India;
(b) that the law degree has been obtained after undergoing a course of study in law for a minimum period of
three years as provided in these rules;
(c) that the course of study in law has been by regular attendance at the requisite number of lectures, tutorials
and "moot courts in a college recognised by a University",
Rule 2 required the Council to publish by a notification in the Gazette of India and prominent newspapers, the
names of Universities whose degrees are recognised under the rules and forward copies thereof to the
concerned Universities. Thus, under Rule 1(1) after March 12, 1967, a degree of law obtained from any
University shall not be recognised for the purpose of Section 24(1)(c)(iii) of the Act unless the conditions
stated in Clause (c) are satisfied. Under the said clause the degree of law was not to be recognised unless the
course of study in law has been by regular attendance at the requisite number of lectures, tutorials and moot
courts in a college recognised by a University. The respondent No. 1 of the first mentioned appeal admittedly
appeared and passed the three law examinations as non-collegiate student without attending lectures, tutorials
and moot courts. Her contention is that before she started the study of law she was aware of the requirement
of Regulation 35 and had obtained the Law Degree in compliance therewith. It is not disputed that the proviso
was added to the said Regulation on December 14, 1979 before she passed the final examination in 1980. This
proviso was added to make the Regulation consistent with the Rules. It may here be mentioned that the
Calcutta High Court in her case by the impugned judgment reported in AIR1983Cal461 struck down the said
rule as ultra vires the provisions of the Act. It may also be stated that in the case of the Kurukshetra University
student also it is an admitted fact that he did not attend the course and passed as a non-collegiate.
12. We may at this stage notice decision of this Court rendered in Baldev Raj Sharma v. Bar Council of India
and Ors (1989 Supple. (2) SCC 91) The factual background in which that decision was rendered was that the
petitioner therein had obtained the LL.B. degree (academic) as a private candidate from the Kurukshetra
University. That was a course of two years duration. He thereafter joined the LL.B. (professional) course in
the third year as a regular student of Kanpur University. After obtaining the degree, he sought enrolment as an
advocate which was refused by the Bar Council of Punjab & Haryana on the ground that he did not fulfil the
requirements of Rule 1 (1)(c) fad Section 24(1)(c)(iii) or (iii-a) of the Act. The petitioner thereupon moved
this Court under Article 32 of the Constitution. This Court after referring to the relevant provisions namely,
Sections 7(h) and (i), Section 24(1)(c)(iii) and (iii-a) and Section 49(1)(b) of the Act read with Rule 1 (1)(c) of
the Rules held that the said Rule envisaged regular attendance of the student for the entire period of the law
course before he can seek enrolment as an advocate. This Court further observed that the Rules merely
amplified what was intended by Section 24(1)(c)(iii) namely, the three years course of study in law must be
pursued by maintaining regular attendance. The court clearly negatived the suggestion that there was any
inconsistency between the provisions of the Act and the Rules. This was because in the opinion of the Court
there was a substantial difference between the course of studies pursued as a regular student and the course of
study pursued as a private candidate. The policy underlying the provisions of the Rules makes it clear that
considerable emphasis is laid on regular attendance at the law classes and this is manifest from the plain
language of the provisions referred to earlier. Since the petitioner had failed to show that he had complied
with the requirements of the said Rules, the Court observed that the action refusing to enrol him was
unassailable.
13. In view of the ratio of this decision, the conclusion of the Calcutta High Court that Rule 1 (1)(c) was ultra
vires Section 7(i), 24(1)(c)(iii) or Section 49(1)(d) stands overruled by necessary implication. Once this Court
has observed that the requirements of Rule 1 (1)(c) merely amplify the requirements of the relevant provisions
of the Act and do not run counter thereto, the vires of the said Rule vis-a-vis, provisions of the Act stands
settled in favour of the validity of Rule 1 (1)(c). Therefore, both the grounds on which the Calcutta High
Court struck down the validity of Rule 1 (1)(c) stand negatived. The impugned decision of the Division Bench
of the Calcutta High Court therefore cannot be sustained.
14. Now under Section 7, one of the functions of the Bar Council of India is to recognise Universities whose
degree in law shall be qualification for enrolment as an advocate and for that purpose to visit and inspect the
Universities. This power of recognition of Universities conferred where the degree of law of that Universities
is conferred where the degree 15 of law of the University entitles the degree-holder for enrolment as an
advocate. Under Section 24(1)(c)(iii) which is relevant for this purpose, a person shall be qualified to be
admitted as an advocate on a State roll if he fulfils the conditions of having undergone a three year course of
study in law from any University in India which is recognised by the Bar Council of India. Sub-section 3 of
Section 24 is an exception clause to Sub-section 1 as it begins with a non obstante clause which entitles a
person to be enrolled as a advocate under special rule made in that behalf. No such Rule was relied upon as
having been made under Sub-section 3 of Section 24. Section 49(1)(d) empowers the Bar Council of India to
make rules which may prescribe the standards of legal education to be observed by Universities in India and
the inspection of Universities for that purpose. If the acquisition of a degree in law is essential for being
qualified to be admitted as an advocate on a State roll, it is obvious that the Bar Council of India mast have
the authority to prescribe the standards of legal education to be observed by Universities in the country. On a
conjoint reading of these provisions of the Act with Rule 1 (1)(c) in Part- IV of the Rules which prescribe the
standards for legal education and recognition of degrees in law as well as admission as advocates, it is
difficult to understand how one can say that the said Rule is inconsistent with any of the provisions of the Act.
What Rule 1(1) (c) requires is that the course of study in law must be completed by regular attendance at the
requisite number of lectures, tutorials and moot courts in a college recognised by a University. As pointed out
earlier, this Court in Ballav Raj Sharma's case pointed out that there was a substantial difference between a
course of studies pursued as a regular student and the course of studies pursued as a private candidate. The
policy underlying the relevant provisions of the Rules is to lay emphasis on regular attendance of the law
classes. It is, therefore, clear that a candidate desiring enrolment as an advocate must fulfil the conditions set
out under the relevant clause of Section 24 read with Rule 1 (1)(c) of the Rules. In the present case since both
the candidates admittedly did not pursue any regular course of study at any college recognised by the
University by attending the law classes, lectures, tutorials and moot courts, they cannot be said to have
complied with the requirements for enrolment as an advocate. In that view of the matter we think that the view
taken by the Calcutta High Court reported in Aparna Basumallkk v. Bar Council of India (AIR1983Cal461) is
erroneous.
15. Our attention was then invited to the decision taken by the Bar Council of India in the case of one Gulwant
Singh who had joined the course of instruction for first LL.B. in the academic year 1967-68 as a private
candidate and obtained a law degree of three years from the Punjab University as a private candidate. On a
reference being made to the Bar Council of India, the latter opined that he was entitled to be enrolled even
though he had passed the law degree as a private candidate. On the analogy of this candidate, it was submitted
that both the candidates before us were also entitled to be enrolled as advocates. We do not think that the
submission is well founded for the simple reason that the case of Gulwant Singh fell within the scope of
Section 24(1)(c)(iia) since he had commenced the study in law from the academic year 1967-68 and not after
12th March, 1967.
16. It was lastly submitted that so far as the Calcutta student was concerned, her cause was governed by
Regulation 35 which specifically permitted a woman candidate to appear as non-collegiate student. This
Regulation underwent a change on the addition of the proviso by the Resolution of December 7, 1979 which
required the University to inform the woman candidate in advance that she will not be eligible for enrolment
as an advocate and the degree to be awarded shall bear an inscription to the effect that it was obtained as a
non-collegiate student. Regulation 35 could not hold the field unless it was consistent with the provisions of
the Act and the Rules. That is why the proviso was required to be added to the regulation. But if the
University had omitted to insert the proviso that would not have entitled a woman candidate for enrolment as
an advocate on securing a degree as a non- collegiate. Unless the degree of law was secured consistently with
the requirements of the provisions of the Act and the Rules would not serve as a qualification for enrolment.
The proviso was added to Regulation 35 by way of extra caution. After the incorporation of Rule 1 (1)(c) in
its present form, Regulation 35 could not entitle a woman candidate to be enrolled as an advocate if she
secured the degree as a non-collegiate.
17. For the above reasons, we are of the opinion that Civil Appeal No. 8816 of 1983 deserves to be allowed.
We allow the same, reverse the decision of the Division Bench of the Calcutta High Court and restore the
decision of the learned single Judge dismissing the Writ Petition which decision is reported as Aparna
Basumallick v. Bar Council of India (AIR1983Cal37). For the same reasons, Writ Petition No. 1153 of 1991
must also fail and shall stand dismissed. The C.M.Ps and the T.A. will also stand disposed of. There will,
however, be no order as to costs in both the matters."
35. In Baldev Raj Sharma v. Bar Council of India and Ors., reported in AIR 1989 SC 1541, the petitioner filed
a Writ Petition before the Supreme Court against an order of the Bar Council of Punjab and Haryana, rejecting
his application for enrolment as an advocate. After acquiring Bachelor of Arts degree from the Punjab
University, Patiala, the petitioner therein joined the Bachelor of Laws (Academic) course in Kurukshetra
University. The course is of two years' duration. Thereafter, he joined the LL.B. (Professional) course in the
third year in Kanpur University as a regular student. The Kanpur University confers two distinct degrees,
LL.B. (General), which is a two year course, and LL.B. (Professional), which is a three year course. As per
the University Regulations, a person who has been awarded LL.B. (General) degree is eligible for admission
to the LL.B, (Professional) three year. The petitioner attended classes as a regular student of the LL.B.
(Professional) Course-third year of the Kanpur University, as required by the Rules and Regulations framed
by that University and thereafter, applied to the State Bar Council of Punjab and Haryana with the necessary
enrolment fee for enrolment as an advocate under the Advocates Act, 1961. The Bar Council of Punjab and
Haryana denied enrolment to the petitioner as an advocate on the ground that the petitioner has not fulfilled
the conditions laid down in Rule 1(1)(c) of the Rules of the Bar Council of India framed under Section 7(h)
and (i), Section 24(1)(c)(iii) and (iiia) and Section 49(1)(d). The main objection of the Punjab and Haryana
Bar Council was that the petitioner had obtained LL.B. (Academic) degree (two years' study course) as a
private candidate. When the rejection of the Bar Council of Punjab and Haryana was challenged, the Supreme
Court, after referring to Section 24 of the Advocates Act and the Rules framed thereunder, at Paragraph 3,
held as follows:
"The Bar Council of India has framed Rules under the Advocate Act, 1961. Rule 1(1)(c) of Part IV of the Bar
Council of India Rules, 1975 provides that except as provided in Section 24(1)(c)(iiia) of the Advocates Act a
degree in law obtained from any University in the territory of India after 12th March, 1967 shall not be
recognised for the purposes of Section 24(1)(c)(iii) of the Act unless the conditions specified there are
fulfilled, including the condition "that the course of study in law has been by regular attendance at the
requisite number of lectures, tutorials and moot courts in a college recognised by a University". These rules
were replaced by a fresh set of rules in 1984 and the new Rule 1(1)(c) is almost identical. The Rule clearly
requires that the course of study in law should have been by regular attendance for the requisite number of
lectures, tutorials and moot courts and practical training. The Rule envisages that for the entire period of the
law course there must be a regular attendance of the student before he can satisfy the conditions necessary for
enrolment as an advocate under the Advocates Act. 1961. The Rules amplify what is intended in Section
24(1)(c)(iii) of the Act. The three years' course of study envisaged by that sub clause in the Act intends that
the three years' course of study in law must be pursued by maintaining regular attendance. We are unable to
say that there is any inconsistency between the Act and the Rule. So also in a case falling under Clause (iiia)
of Section 24(1)(c) of the Act, a course of study in law must be pursued for not less than two academic years
in terms of that sub-clause and Rule 1(1)(c) will apply to such a case also. There is a substantial difference
between a course of study pursued as a regular student and a course of study pursued as a private candidate.
The policy underlying the relevant provisions of the Bar Council Rules indicates the great emphasis laid on
regular attendance at the law classes. The conditions are specifically spelt out when the Act is read along with
the Rules. When so read, it is plain that a candidate desiring enrolment as an advocate under the Advocates
Act must fulfil the conditions mentioned in Section 24(1)(c)(iii) or Section 24(1)(c)(iiia) read with Rule
1(1)(c) of the Bar Council of India Rules, 1975. In the present case the petitioner failed to do so. His
application for enrolment was rightly rejected."
36. On the duties and responsibilities of the State Bar Councils and Bar Council of India, in Indian Council of
Legal Aid v. Bar Council of India reported in 1995 (1) SCC 732, the Supreme Court, at Paragraph 3, 4 and 6,
held as follows:
"3. It will be seen from the above provisions that unless a person is enrolled as an advocate by a State Bar
Council, he shall have no right to practise in a court of law or before any other Tribunal or authority. Once a
person fulfills the requirements of Section 24 for enrolment, he becomes entitled to be enrolled as an advocate
and on such enrolment he acquires a right to practise as stated above. Having thus acquired a right to practise
he incurs certain obligations in regard to his conduct as a member of the noble profession. The Bar Councils
are enjoined with the duty to act as sentinels of professional conduct and must ensure that the dignity and
purity of the profession are in no way undermined. Its job is to uphold the standards of professional conduct
and etiquette. Thus every State Bar Council and the Bar Council of India has a public duty to perform,
namely, to ensure that the monopoly of practice granted under the Act is not misused or abused by a person
who is enrolled as an advocate. The Bar Councils have been created at the State level as well as the Central
level not only to protect the rights, interests and privileges of its members but also to protect the litigating
public by ensuring that high and noble traditions are maintained so that the purity and dignity of the
profession are not jeopardized. It is generally believed that members of the legal profession have certain social
obligations, e.g., to render 'pro bono publico' service to the poor and the under-privileged. Since the duty of a
lawyer is to assist the court in the administration of justice, the practice of law has a public utility flavour and,
therefore, he must strictly and scrupulously abide by the Code of Conduct behoving the noble profession and
must not indulge in any activity which may tend to lower the image of the profession in society. That is why
the functions of the Bar Council include the laying down of standards of professional conduct and etiquette
which advocates must follow to maintain the dignity and purity of the profession.
4. ........Section 49(1) confers power on the Bar Council of India to make rules, inter alia, for discharging its
functions under the Act. Section 49(1)(ag) when read with Section 24 of the Act confers wide powers on the
Bar Council of India to indicate the class or category of persons who may be enrolled as advocates which
power would include the power to refuse enrolment in certain circumstances. The obligation to maintain the
dignity and purity of the profession and to punish erring members carries with it the power to regulate entry
into the profession with a view to ensuring that only profession-oriented and service-oriented people join the
Bar and those not so oriented are kept out.
6. We have briefly noticed the relevant provisions of the Act in the earlier part of this judgment. We may now
briefly indicate the scheme. Before we do so it may not be out of place to mention that the profession of law is
one of the oldest professions and was practised in one form or the other in the honorary post. After the advent
of the British in India, certain rules in regard to the practise of law were introduced. Before independence
there were Mukhtars and Vakils who were permitted to practise law in moffusil courts even though not all of
them were Law graduates. However, slowly and gradually they were allowed to wither away and their place
was taken by Pleaders who were, after securing a degree in law permitted to practise at the district level.
Those who were enrolled as advocates could practice in any court subordinate to the High Court including the
High Court. The difference between a Pleader and an advocate was merely on account of the fee charged for
enrolment. After independence, came the Act which was enacted 'to amend and consolidate the law relating to
legal practitioners and to provide for the Constitution of Bar Councils and an all-India Bar'. The Act creates an
all-India Bar with only one class of legal practitioners, namely, advocates, who of course are classified as
senior advocates and other advocates (Section 16). The general superintendence of ethics and etiquette of the
profession is the responsibility of the Bar Councils created under the Act and they have been charged with the
duty to punish their members for misconduct. The Act envisages the existence of a Bar Council for every
State. The function of admission of persons as advocates is entrusted to every State Bar Council which is
required to prepare and maintain a roll for that purpose. While disciplinary jurisdiction is conferred on the
State Bar Councils to punish its members for misconduct, it is at the same time charged with the duty to
safeguard their rights, privileges and interest. They must perform all the functions conferred on them by or
under the Act and do everything that is necessary to discharge the functions set out in Section 6. So far as the
Bar Council of India is concerned, its functions are of a more general nature, e.g., to lay down standards of
professional conduct and etiquette for advocates, to safeguard their rights, privileges and interests, to
supervise and control the working of the State Bar Council, to promote legal education, to recognise
universities, to organise legal aid to the poor and to perform all other functions conferred by or under the Act
and do everything that may necessary to discharge the functions enumerated in Section 7. Besides the above it
too is required to exercise discipline and control over the members of the profession. Thus the functions are
divided between the State Bar Councils and the Bar Council of India, although for obvious reasons overlaps
are unavoidable. The rule making power has been conferred on the State Bar Councils under Sections 15 and
28 and on the Bar Council of India under Section 49 of the Act."
37. Reverting back to the case on hand, material on record shows that a complaint, dated 26.08.2000, has been
lodged by the Bar Association, Nagercoil to take action against four lawyers, including the petitioner, who has
been alleged to have been working as an Advocate's Clerk in Nagercoil and did not attend the law course
regularly, as regular attendance is necessary for the course of study for obtaining a law degree. The Bar
Council of India, by proceedings, dated 31.01.2001, has instructed the Bar Council of Tamil Nadu to take all
the facts into consideration and pass a detailed order. Pursuant to the same, the Bar Council of Tamil Nadu,
after providing an opportunity to the Advocates, has sent a report to the Bar Council of India, vide
proceedings in R.O.C.No.1060 of 2001, dated 28.08.2001 in Removal Proceedings No.6 of 2000. The
petitioner along with three others have been placed under suspension and thereafter, ratification has been
sought for, by the Secretary, Bar Council of Tamil Nadu. The Bar Council of India, has requested the State
Council to submit a report by 15th February' 2002. The Disciplinary Committee No.2 of the Bar Council of
Tamil Nadu, in its report, dated 7.06.2003, after considering the case of the petitioner, has recorded as
follows: "PW.1, Ashok Padmaraj is the Secretary of the Complainant Association. He has filed the proof
affidavit stating the facts of the case of the complainant. He was thoroughly cross examined by the
respondents' counsels. PW.2, G.Nagendran the Secretary of the Advocate Clerks Association, Nagercoil has
deposed for the complainant. He has produced the registers of his Association in Ex.C1 to C4. The various
entries in these documents show that the respondent B.Balakrishna Pillai was a member of the Clerks
Association. PW.2 has also stated that during the relevant period the respondent B.Balakrishnan Pillai was a
member of the Advocate Clerks Association and he was working as a Advocate Clerk at Nagercoil.
The respondent B.Balakrishna Pillai was examined as RW.3. Only the most relevant portion in his evidence is
being considered. Admittedly, he was working as advocate clerk at Nagercoil under G.Ramakrishnan,
advocate from 1981 to April 1994. During 1994 to 1997, he did his law course in the S.S.L.R.C. Havanur
College of Law at Bangalore. He has stated that his younger sister V.Lakshmi was living at Hosur near
Bangalore and he was staying with her when he was studying his law course. Ex.R34 is the Attendance
Certificate issued to him by his college. He studied his law course properly and obtained his law degree in a
proper manner. His enrolment was duly done."
38. All the four Lawyers, including the petitioner, against whom, removal proceedings were initiated, have
obtained law degrees from colleges outside the State of Tamil Nadu. The disciplinary committee, while
considering as to whether the petitioner and others have satisfied the minimum attendance of 66% of the
lecturers, on each of the subjects, as also the tutorials, moot courts and practical training, has observed that the
distance between the Nagercoil and Bangalore is 650 Kms. To prove that it is not possible for the writ
petitioner and others to attend regular course in college at Bangalore, the complainant, the Secretary,
Nagercoil Bar Association, has examined PW.2, Mr.G.Nagendran and marked exhibits, C1 to C4, Registers
and Minutes Book maintained by the Advocate Clerks's Association, in which, it has been found that three of
them were members of the Advocate Clerk Association and they were paying their subscription.
39. Out of the four Advocates against whom, removal
proceedings have been initiated, except, Mr.E.Chithambarahanu Pillai, who had claimed to have worked in
N.S.K. Polytechnic, Kanyakumari, others were Advocate Clerks. To sustain the avernments that they have not
attended regular courses and satisfied the minimum attendance as required under the rules, the Committee,
after considering the evidence, has observed that they have not furnished any material records, precisely to
prove that they had put in 66% of the lectures, on each of the subjects, as also at tutorials, moot courts and
practical training course. Before the Committee, the petitioner and others have relied on Exs.R14, 24 and 34,
said to be the Attendance Certificates issued by the respective colleges. Ex.R14 is the Attendance Certificate
issued by the SLSRC Havanur College of Law, Bangalore, to Mr.J.Parameswaran Thambi (R.P.No.10 of
2000). Ex.R24, Attendance Certificate issued by Islamiah College of Law in respect of Mr.P.Subramonia
Pillage (R.P.No.11 of 2000). Ex.P34 is the Attendance Certificate issued by the S.L.S.R.C. Havanur College
of Law, Bangalore, to the petitioner (R.P.No.12 of 2000). Upon consideration of the same, the Enquiry
Committee has observed that,
"All these three documents relied on by the respondent to prove their attendance as required under the Rule
are totally silent as to how many lecturers, tutorials, moot courts and practical training courses were required
to be attended and how many of them were attended by the respondents. In the absence of those particulars in
these three documents and in view of the facts that they have been issued after four or five years after the
completion of the law course, we are not inclined to place any reliance on these three documents in Ex.R14,
R24 and R34."
40. Thus, it is seen from the report of the State Bar Council that though the petitioner and two others have
contended that they have stayed in the same place, near to the Law Colleges in Bangalore, they have not
examined anyone to corroborate the same. Again, the contents of the supporting affidavits of the advocates
under whom, they claimed to have worked as Advocate Clerks, have not been proved by examining them
before the Committee. Therefore, in these circumstances, the Enquiry Committee has observed that, "all the
three respondents have not discharged their burden of proof and they have failed to prove that they have
complied with the condition laid down in Rule 1(i)(c) Section B Part IV of the Bar Council of India Rules."
41. Placing reliance on a decision of Division Bench of Punjab and Haryana High Court in Janak Raj v. Bar
Council of India reported in AIR 2001 P & H 374, the Enquiry Committee, has further observed that, "the
LLB Degrees held by the respondents in Removal
Proceedings No.06/2000, 10/2000, 11/2000 and 12/2000 may be valid for any other purpose but will not
entitle them to enroll as advocates and since they have been already enrolled by the Bar Council of Tamil
Nadu as advocates they are liable to be removed from the Bar Council of Tamil Nadu."
42. The facts of the above reported judgment are as follows: The petitioner therein joined the Office of the
Deputy Commissioner, Ferozepur in the year 1962 and after attaining the age of superannuation, he retired
from service on October, 31, 1997. He passed B.A., in the year 1971, while in service and in the year 1995, he
joined the Three Years' LL.B. (Professional) course "as a regular student in Faculty of Law, Shia Degree
College, Lucknow", affiliated to University of Lucknow. He claimed that in August 1996, he had taken up
L.L.B., examination, subject to the condition that no leave would be granted. He completed the course in the
year 1998. A provisional certificate, dated November 29, 1999, was issued by the University, certifying that
the petitioner had passed the Degree of Bachelor of Law in the Second Class. The Principal of the College
also certified that the petitioner had passed the examination as a regular student from the institution and that
his attendance was as per norms prescribed by Lucknow University. Thereafter, the petitioner had submitted
the forms along with the requisite fee for enrolment as a trainee to the Bar Council. As the Training Service
Rules were struck down by the Supreme Court in V.Sudeer v. Bar Council of India, the petitioner approached
the Bar Council for enrolment as an Advocate. On receipt of the application, the Bar Council asked the
petitioner to furnish following information along with the supporting documents :--
(i) "Place of posting during law course 1995-1998.
(ii) Distance (one side) from place of posting to place of Law College.
(iii) Proof of leave or study leave from your Department duly obtained for the purpose of at tending the
regular classes from the date of admission till the date of retirement. The details should be yearwise and
monthwise.
(iv) Copy of permission order to join LL.B. classes at Lucknow."
43. The petitioner submitted a reply on July 14, 1999. The distance between the office of the Deputy
Commissioner, Ferozepur and the College was 720 kms. He had obtained 143 days' earned leave during the
period from May 15, 1995 to July 21, 1997. Besides, he also claimed to have availed casual leave. For the
proof of leave, having been obtained for the purpose of attending regular classes and copy of the order,
granting permission to join LL.B. classes at Lucknow, the petitioner has contended that he had already
submitted the same. The Bar Council, vide letter, dated August 1, 2000, rejected his application for enrolment.
Assailing the correctness of the order of rejection, the petitioner inter alia contended that the action of the
respondents in rejecting his claim was arbitrary and discriminatory, as the attendance given by the college had
not been properly considered. It was also contended that no action for the cancellation of the degrees awarded
by the respective Universities had been taken by the Bar Council. According to him, other persons who had
obtained degrees, in a similar manner had been enrolled. While considering the above submissions, the
Division Bench, at Paragraphs 11, 12, 13 and 14, held as follows:
"11. The Advocates Act, 1961 embodies the law relating to the legal practitioners. Section 24 of the Act lays
down the conditions which a person has to fulfil before he can be considered as "qualified to be admitted as an
Advocate on a State roll". One of these conditions is that he should have "obtained a degree in law after
undergoing a three years' 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". It has been further provided that he should fulfil "such other
conditions as may be specified in the rules made by the State Bar Council under this chapter".
12. In exercise of the powers under the Act, Rules have been framed by the Bar Council of India. These lay
down the standards of legal education as required under the Act. In Section 'B' which is applicable in the case
of persons obtaining a degree of Law on the completion of three years of study, Rule 1(1) (b & c) provide that
a degree in law shall not be recognised for the purposes of Section 24(1)(c)(iii) unless the following
conditions are fulfilled:--
(b) that the law degree has been obtained after undergoing a course of study in law for a minimum period of
three years as provided in these rules.
(c) that the course of study in law has been by regular attendance at the requisite number of lectures, tutorials
or moot Courts in a college recognised by a University.
13. Rule 3 requires that the students shall be required to put in a minimum attendance of 66% of the lectures
in each of the subjects as also at tutorials, moot Courts and practical training course.
14. What is the position in the present cases? The petitioners were admittedly employed in the office of the
Deputy Commissioner, Ferozpur when they had joined the course. They have not been able to show as to how
many lectures had been delivered and that they had actually attended the requisite percentage thereof. In this
situation, it is apparent that the petitioners did not fulfil the conditions prescribed under the Act and the Rules.
44. As regards the contention that some other persons were permitted to enrol themselves as Advocates, at
Paragraph 24, the Division Bench held as follows:
"24. The onus of proving that equals have been treated unequally lay on the petitioners. They have not shown
that the persons who were similarly situate have been treated differently. Still further, even if it is assumed
that the respondents have enrolled certain persons despite the fact that they did not fulfil the prescribed
conditions of eligibility, this Court cannot compel the respondents to repeat the wrong. No direction to act in
violation of a rule can be Issued by the Court. Resultantly, the plea of discrimination cannot be sustained."
45. As per the rules, the students shall be required to put in a minimum attendance of 66% of the lectures on
each of the subjects, as also at tutorials, moot courts and practical training course. Only in exceptional cases,
for reasons to be recorded and communicated to the Bar Council of India, the Dean of the Faculty of Law and
the Principal of law colleges may condone attendance short of those required by the Rule, if the student had
attendance 66% of the lectures in the aggregate for the semester or examination as the case may be.
46. Regular attendance of the lecturers, tutorials, moot courts and practical training given by the college,
affiliated by the University and recognised by the Bar Council of India is a mandatory requirement for
securing a law degree and it is to be noted that a bachelor of academic laws, now afforded by many
Universities through distant education is not recognised for enrolment as an advocate. Part IV of the Bar
Council of India Rules prescribe minimum lecture hours for certain papers, such as, (1) Moot Courts,
Pre-Trial Preparation, Participation in the Trial Proceedings, (2) Public Interest, Loitering, Legal and
Para-Legal Services and (3) Other Papers.
47. Thus, it is mandatory requirement under the Act and the rules framed that a person, who seeks for
enrolment, should attend regular classes and satisfy the minimum percentage of attendance of the lectures, on
each of the subjects, as also at tutorials, moot courts and practical training course. In the case where a person
is employed, it is also a mandatory requirement that to prove that permission has been granted by the
employer for the purpose of admission and attending the regular classes. One cannot simultaneously work in
an office or establishment, earn salary and claim to be a regular student of a Law College, for the purpose of
enrolment. He cannot be omnipresent both in the college and in the Office/establishment, simultaneously. If
any records are produced by such persons, to satisfy that he was on leave, during the period of study, duly
granted by the employer, with the necessary permission to pursue the regular course, then the case would be
different. It cannot be contended that the Bar Councils are powerless to enquire as to whether the applicant
has satisfied the requirement under the provisions of the Act and the rules, prescribed for enrolment. It cannot
also be contended that merely because, a University or the College has given an attendance certificate, the Bar
Councils should be refrained from examining the veracity of the same and find out whether the applicant has
satisfied the mandatory requirement as to whether, he has put in the required attendance.
48. As held in various decisions stated supra, unless the applicant satisfies that he had underwent the regular
course with the regular attendance, the State Bar Council or the Bar Council of India is empowered to take
appropriate action, even to remove the lawyer from the rolls. While doing so, the Bar Council of the State or
Bar Council of India, as the case may be, is empowered to consider the evidence on record. In Janak Raj's
case, though the petitioner therein has produced a certificate from the college, stating that he had undergone
regular course of study, the Bar Council of Punjab and Haryana independently considered the same, with
other evidence and came to the conclusion that the petitioner therein did not satisfy the requirement for
enrolment. Bar Council of the State and the Bar Council of India, statutory bodies under the Advocate's Act
are empowered to examine as to whether the requirements for enrolment as an advocate are satisfied. Merely
because, a person has already been admitted to the rolls of the State Bar Council, that would not preclude the
Councils to examine the complaints and pass necessary orders under the provisions of the Act and the rules.
49. Material on record shows that on receipt of the enquiry report of the Bar Council of Tamil Nadu, dated
07.06.2003, the petitioner has been called upon to appear before the Bar Council of India on 9th November'
2003 at the premises of Bar Council of India, New Delhi. In response to the notice, the petitioner has sent a
reply, dated 17.10.2003 to the Bar Council of India and prayed to reverse the finding of the Enquiry
Committee. He has also prayed for permission to practice as an Advocate. Subsequently, on 01.11.2003,
another show cause notice has been issued by the Bar Council of India, directing the petitioner to appear on
22nd February' 2004 at New Delhi. When the Bar Council of India, vide order, dated 05.01.2007, has directed
the petitioner to appear on 20.01.2007, a reply has been sent, stating that he has obtained interim stay of the
removal proceedings in the present Writ Petition. The interim stay and the pendency of this writ petition are
cited as reasons for not concluding the removal proceedings. The contention of the petitioner that he is entitled
to similar relief granted to the writ petitioner in W.P.No.3005 of 2004, dated 26.07.2006 and that the removal
proceedings pending against him, before the Bar Council of India are deemed to have been concluded, cannot
be countenanced for more than one reason.
50. Facts of the judgment made in W.P.No.3005 of 2004 are that earlier, the petitioner therein had filed
W.P.No.11004 of 2002, questioning the order of Bar Council of Tamil Nadu. In the said Writ Petition, by
order, dated 02.12.2003, this Court has directed the Bar Council of India to pass orders on the removal
proceedings No.11 of 2000, within a period of two months from the date of passing of the order in the Writ
Petition. Thereafter, the petitioner received a telegram from the Secretary, Bar Council of India, intimating
that the hearing in the removal proceedings has been fixed on 22.02.2004. Though he had attended enquiry
and pleaded his case, no orders were passed. In such circumstances, this Court, by observing that inspite of
specific instructions made in W.P.No.11004 of 2002, the Bar Council of India has not passed any orders for
nearly two years and on that basis, quashed the removal proceedings.
51. As rightly contended by the learned counsel for the Bar Council of India, when there is no specific time
limit provided under Section 36 of the Advocate's Act, for the Bar Council of India to pass orders, either of its
own motion or on the report, by any State Bar Council, the removal proceedings initiated by the State Bar
Council cannot be declared as deemed to have been concluded in favour of the writ petitioner. Reading of
Section 36-B of the Advocate's Act, 1961, makes it clear that the disciplinary committee of a State Bar
Council shall dispose of the complaint received by it, under Section 35 expeditiously and in each case, the
proceedings shall be concluded within a period of one year from the date of the receipt of the complaint or the
date of initiation of the proceedings, at the instance of the State Bar Council, as the case may be, failing
which, such proceedings shall stand transferred to the Bar Council of India which may dispose of the same, as
if it were a proceeding withdrawn for inquiry under sub section (2) of section 36 of the Act.
52. The contention that the College is the authority to say about the attendance and the Bar Council of State
cannot examine the same, cannot be countenanced, for the reason, the Bar Council of the State or the Bar
Council of India, being the disciplinary authority under the Act, has every authority to verify the details, for
the purpose as to whether, the applicant satisfies the mandatory requirement of attending a regular course,
with the required percentage of attendance in the subjects. If the contentions of the petitioner are to be
accepted, then no disciplinary action can be taken against any advocate, who secures a law degree and enrols
as advocate, dehors the statutory requirement. Power of the Councils cannot be severed, considering their role
under the Act to maintain discipline and for the enforcement of the principles of the Act and the rules framed
thereunder. Material on record shows that the writ petitioner has also submitted his reply to the show cause
notice offering his explanation on the enquiry report. All that remains now, is only passing of appropriate
orders, in accordance with the provisions of the Bar Council of India Rules.
53. With the mushroom growth of Institutions in neighbouring States, offering legal education, sitting in the
home State and being engaged in some avocation, securing law degrees, has become easier. Judicial notice
can also been taken, the number of advocates enrolled in the State Bar Council has exceeded the sanctioned
strength in the law colleges in the State of Tamil Nadu. The Bar Council of the State and the Bar Council of
India have a statutory duty to uphold high standards of legal education. On the one hand, Government
establishes School of Excellance with high degree in standards of legal education and simultaneously, there is
an enormous increase in the number of persons, who secure law degrees, from the neibourhood States. There
cannot be a restriction in pursuing legal education from other States, but at the same time, for the purpose of
enrolment as an advocate, a noble profession, the Bar Councils should thoroughly examine the applications
submitted for enrolment at the threshold and take appropriate action against those, who acquire law degrees
without satisfying the mandatory conditions under the Act and the rules framed thereunder and practice as
advocates. If the exercise is not taken up by the Bar Councils, then the institution would in a way be
responsible for allowing persons not qualified for enrolment to practice the noble profession of law and public
interest would be affected.
54. In the light of the above discussion and the judicial pronouncements stated supra, this Court is of the
considered view that when the removal proceedings are pending before the Bar Council of India and after
having submitted the reply to the show cause notice, it is not open to the petitioner to seek for a declaration, as
prayed for. Hence, the Writ Petition is dismissed. Interim stay granted is vacated.
55. The Bar Council of India, New Delhi, is directed to pass orders as expeditiously as possible, not later than
four months from the date of receipt of a copy of this order. It is made clear that the petitioner, who has
already submitted his reply to the proceedings, shall not protract. It is sincerely hoped that the Bar Council of
India, New Delhi, would comply with the orders within the stipulated time on the basis of the materials
available on record. No costs. Consequently, connected Miscellaneous Petition is also closed.
skm
To
1. The Secretary,
Bar Council of India,
Rouse Avenue,
Institution Area, Near Bal Bhavan,
New Delhi 110 002.
2. The Secretary,
Bar Council of Tamil Nadu,
High Court Campus, Chennai 600 104.

B.balakrishna Pillai Vs The Bar Council of India On 10 January, 2011

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