CASE COMMENTS

ON

V. SUDEER

VS

BAR COUNCIL OF INDIA

AIR 1999 SC 1167

 ABSTRACT

The issue of conducting the Bar examinations by the Bar Council of India
and the State Bar associations for the admission of the candidates into the
legal profession has been much debated upon. The following case was an
attempt by the Supreme Court of India to address this issue. The court
observed the various nuances as well as the historical background and
developments of the Advocates Act of 1961 and the Bar Council of India
Training Rules of 1995 for the purpose of this case. The court held that the
impugned 1995 rules were unconstitutional.

This case analysis provides a brief overview of the relevant facts, issues, and
arguments of both sides in this case. This analysis examines the judgment
of the apex court and makes some suggestions upon the same. This analysis
finds the judgment of the court to be erroneous on some points and proper
on others and relevant observations have been given. Doctrinal methodology
of research has been used in this case since ample materials in the form of
articles and case notes were available.
 INTRODUCTION

This case comprised of writ petitions under article 32 of the Constitution of

India and two Special Leave Petitions (hereinafter SLPs) under article 136 of
the Constitution. The SLPs were moved by the Bar Council of Maharashtra
and Goa and the Bar Council of India wherein a common question was
raised for consideration.1

The legality and competence of 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 for providing training to the
fresh entrants of legal (specifically litigation) profession was questioned.

The All India Bar Examinations (AIBE) has been a contentious issue, with
multiple parties filing petitions against it before various courts. 2

FACTS OF THE CASE

1
https://www.legalcrystal.com/cases/search/name:borwe
2
Utkarsh Srivastava, In Defence of the All India Bar Examination, THE WIRE (Nov. 21, 2020, 06:00 P.M.),
https://thewire.in/law/in-defence-of-the-all-india-bar-exam
The writ petitioners had completed their legal education and had obtained
the law degrees from their universities. They contended that their right to
practice law is being arbitrarily denied by the impugned rules framed by the
Bar Council of India and their fundamental right under Article 19(1) (g) of
the Constitution of India is being violated.

The Bar Council of India Training Rules of 1995 provided, inter alia, that no
person shall be entitled to be enrolled as an advocate unless he is eligible to
be enrolled as such under section 24 of the Advocates Act, 1961 and has
undergone training as prescribed under these rules. The successful
completion of the training period required the candidate to regularly attend
the chamber or office of the guide, study case papers, correspondence, draft
pleadings, attend courts, and particularly study cases with a view to get
acquainted with the practice in courts and minimum attendance for 225
days in all in courts and chambers in a year.3

The civil appeal arising out of the Special Leave Petition of the Bar Council
of Maharashtra and Goa challenged the order of the High Court of Bombay
wherein the court had upheld the legality and validity of the aforementioned
rules and had dismissed the writ petitions. The civil appeal arising out of the
Special Leave Petition of the Bar Council of India challenged the decision of
the Punjab and Haryana High Court wherein it was stated that the rules of
1995 were purely prospective in nature and thus, the court had denied the
claim of the petitioner who had obtained his law degree in 1981.

ISSUES INVOLVED IN THE CASE

3
The Bar Council of India Training Rules, 1995, https://indiankanoon.org/doc/128629281/
  Whether or not the impugned rules of the Bar Council of India are
ultra vires the rule-making power of the Bar Council of India as
available to it under the provisions of the act?

 Whether or not the impugned rules are arbitrary and unreasonable in

nature so as to violate the article 14 (Right to Equality) of the
Constitution of India?

 Whether or not the respondent in Bar Council of India’s 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?4

LEGAL ASPECTS INVOLVED IN THE CASE

4
https://www.scribd.com/document/5332579/advocates-act-1961-sections-324-3-d-29-2-b-49-1-ag-and-ah-
bar-council-of-india-trai
  Article 14 of the Indian Constitution: This article is one of the
Fundamental Rights accorded to the Indian Citizens in Part III of the
Constitution. This article basically states that “The State shall not
deny to any person equality before the law or the equal protection of
the laws within the territory of India”. Equality before Law basically
means that all persons should be treated equally no matter whether
they are poor or rich, male or female, upper caste or lower caste.
Equality before Law prohibits providing any special privilege to any
community or people.5

 Article 19 (1) (g) of the Indian Constitution: The right to do

business is a fundamental right given to the citizens of India under
Article 19 (1) (g) of part III of the Constitution of India. It refers to a
general right to carry on any type of business, occupation or
profession to satisfy their livelihood needs. It doesn’t include a right to
carry on any activity which is illegal of nature or hinders public
interest.6

 Section 24 of the Advocates Act, 1961: This section specifies the

qualifications of a person entitled to be enrolled into the Bar. The
qualifications are regarding the age (21 years), citizenship (Indian),
and the attainment of a law degree after 12 th March, 1967. The
Advocates Act, 1961 empowers State Bar Councils to frame their own
rules regarding enrolment of advocates.7

 Bar Council of India Training Rules, 1995: These rules deal with
the conditions and training process to be undergone by a person
before he can be enrolled as an advocate in a State Bar Council.

5
Aniket Tiwari, An overview of Right to Equality under Article 14 of the Constitution, IPLEADERS (Nov. 21,
2020, 06:40 P.M.), https://blog.ipleaders.in/article-14/
6
Noopur Dalal, What can you do if your right to do business is curtailed by a government notification,
IPLEADERS (Nov. 21, 2020, 06:45 P.M.), https://blog.ipleaders.in/rights-business-curtailed/
7
Nandini Tarway, Salient Features of Advocates Act, 1961, SCRIBD (Nov. 26, 2020, 06:50 P.M.),
https://www.scribd.com/document/339925881/SALIENT-FEATURES-OF-ADVOCATES-ACT-1961
 ARGUMENTS BY THE PETITIONER

The learned counsel for the petitioners submitted that there is no power
with the Bar Council of India to frame the impugned rules. It was also
submitted 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. 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.8 In addition, the impugned rules were contended to
be obnoxious, arbitrary, unreasonable and unworkable, so much so that
they violate the fundamental right to equality under article 14 of the
Constitution of India. It was also added that the retrospective nature of the
9
impugned rules was untenable. Therefore, the petitioners contended that
the impugned rules are ultra vires the powers of the Bar Council of India
and that they are unconstitutional and should be struck down.

ARGUMENTS OF THE RESPONDENT

8
https://www.scribd.com/document/60613687/abhinav
9
V. Sudheer v. Bar Council of India, (AIR 1999 SC 1167).
The respondents argued that the impugned rules are very much within the
powers (intra vires) of the Bar Council of India to regulate and enforce. In
addition, it was argued that the impugned rules were reasonable, justified
and well within the purview of the constitutional rights guaranteed to the
citizens of India.

AN OVERVIEW AND AN ANALYSIS OF THE JUDGMENT

The court observed that the advocates act seeks 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 court also observed the required
conditions to be fulfilled for persons to be admitted as advocates on a state
roll. After examining the original section 24 (d) of the 1961 act and its
subsequent amendment in 1964, the court clarified that between 1961 and
1964, the State Bar Council, as a condition of enrolment, required an
applicant to undergo and complete a course of training in Law. 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.10

The court stated that the Bar Council of India was given the powers 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 and that 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.11

The 2-judge bench comprising of Hon’ble Justices S.B. Majumdar and S.N.
Phukan of the apex court additionally referred to the statement of objects
and reasons of the Advocates (Amendment) Bill, 1970 which had ultimately

10
https://www.scribd.com/document/5332579/advocates-act-1961-sections-324-3-d-29-2-b-49-1-ag-and-ah-
bar-council-of-india-trai
11
https://indiankanoon.org/doc/1029236/
resulted in the termination of the Section 24 (1) (d) of the 1961 Advocates
Act. The reasoning for the same was highlighted in the third paragraph of
the aforementioned statement of objects and reasons. The reason was that
the Bar Council of India had mandated that the legal profession can be
entered into by someone only after pursuing a Law degree for 3 years after
graduation. This meant that age of entry in the legal profession was higher
than that of other professions and hence, a further examination or practical
training wasn’t required for the people joining the legal profession after
pursuing the 3-year Law degree after their graduation.

The court stated that the aforementioned facts implied that the Bar Council
of India had itself agreed upon the fact that a 3-year law degree would be
enough for providing the proof for qualification for enrolments as an
advocate and that in the syllabus given by the Bar Council of India to all the
recognized colleges and universities around the country included practical
training as a part of the curriculum.

The court additionally observed that there is no legislature which

disqualifies the entrants to from entering into the legal profession in cases
where that particular entrant has not undergone the pre-enrollment training
period. The court however agreed to the fact that the legal profession
requires well-trained professionals. Therefore, the court suggested that the
entry exams for the 3-year law course in the colleges should be tough and
strict so as to gauge the potential merit of the candidates, the Bar Council
should introduce some procedural professional courses for the graduates
pursuing the law degree, there should be a minimum limit fixed for
attendance in the law colleges, and finally a strict and practical apprentice
test for the law graduates. The court implored the Bar Council of India to
examine, deliberate, and implement the aforementioned suggestions.

In this case, the court struck down the impugned 1995 rules and allowed
the writ petitions. In order to avoid confusion, the court clarified that this
judgment shall be applicable in a prospective manner.
The court’s viewpoint about requirement of well-trained professionals in
legal profession is absolutely correct. The suggestions mentioned by the
court are relevant and should be implemented keeping in view the different
circumstances and policies of each state and law college. The court did err
in striking down the rules in their entirety. Having a law degree and a few
professional law courses under one’s name doesn’t guarantee the existence
of practical knowledge of the legal field. A training period is essential in the
legal profession. The rules were a bit ambiguous given the historical
background, but the court could’ve ordered an amendment of the language
of the 1995 training rules.

CONCLUSION
This case was an attempt made by the apex court to address the
contentious issues of the All India Bar Examinations for the enrollment of
the advocates. It is concluded that the Bar Council of India has the powers
to regulate the rules related to the enrollment of advocates since it is the
apex body of lawyers in India. In addition, it is concluded that the training
rules of 1995 weren’t violating article 14 and 19(1) (g) of the Indian
Constitution. A right to practice law isn’t an absolute and unconditional
right. Given the fact that in litigation, the quality of life of the clients are at
stake, a training period for the fresh entrants will only aid the entrants to
hone their technical and other relevant legal skills. It provides an impetus to
the right to carry out a profession of one’s choice since a proper training
period enhances the quality of the work. Giving entry to well-trained
individuals comes under the ‘intelligible differentia’, one of the exceptions
under article 14 i.e. Right to Equality.

REFERENCES
1.) Utkarsh Srivastava, ‘In Defence of the All India Bar Examination’ (The
Wire, 17 Mar 2016) < https://thewire.in/law/in-defence-of-the-all-
india-bar-exam> accessed 21 November 2020.
2.) Aniket Tiwari, ‘An overview of Right to Equality under Article 14 of the
Constitution’ (IPLEADERS, 6 Jan 2020) <
https://blog.ipleaders.in/article-14/> accessed 21 November 2020.

3.) Noopur Dalal, ‘What can you do if your right to do business is

curtailed by a government notification’ (IPLEADERS, 15 Feb 2016)
<https://blog.ipleaders.in/rights-business-curtailed/> accessed 21
November 2020.
4.) Nandini Tarway, ‘Salient Features of Advocates Act, 1961’, (SCRIBD,
21 Feb 2017)
<https://www.scribd.com/document/339925881/SALIENT-
FEATURES-OF-ADVOCATES-ACT-1961> accessed 26 November,
2020.
5.) V. Sudheer v. Bar Council of India, (AIR 1999 SC 1167).