Madras HC Quashes Bar Council of India Notification Relaxing the Age Limit for Three-year Law Course

1

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 07.08.2015 CORAM THE HON'BLE Mr. JUSTICE S.MANIKUMAR AND THE HON'BLE Ms. JUSTICE V.M.VELUMANI W.P.(MD)No.9533 of 2015 M.P(MD)Nos.1 to 3 of 2015

B.Ashok

.. Petitioner vs.

1. The Secretary, Ministry of Union Law and Justice, Government of India, New Delhi. 2. The Secretary, Ministry of Law and Justice, Government of Tamil Nadu, Chennai. 3. National Legal Knowledge Council, New Delhi. 4. The Secretary, Bar Council of India, 21, Rouse Avenue Institutional Area, Near Bal Bhavan, New Delhi. 5. The Chairman, Legal Education Committee,

2

Bar Council of India, 21, Rouse Avenue Institutional Area, Near Bal Bhavan, New Delhi. 6. The Chairman, Bar Council of Tamil Nadu and Pondicherry, High Court Campus, Chennai - 600 104. 7. The Secretary, Union Grants Commission, Bagadur Shah Zafar Marg, New Delhi - 110 002. 8. Dr.Ambedkar Law University, Rep. by its Registrar, Greames Road, Chennai. 9. Thiru S.Prabakaran, A Hon'ble Member of One Man Committee, constituted to reconsider the age restriction of Clause 28 of Legal Education Rules, 2008, Bar Council of India, 21, Rouse Avenue Institutional Area, Near Bal Bhavan, New Delhi.

... Respondents

Petition filed under Article 226 of the constitution of India to issue a writ of Certiorari, calling for the records of the impugned notification of the fourth respondent, dated 28.09.2013 and the impugned G.O.(Ms)No.194,

Law

(LS)

Department,

dated

03.06.2015

and

consequential admission notification of the eighth respondent, dated 04.06.2015 and quash the same and consequently entrust the function

3

stated in the Legal Education Rule, 2008 either on the Legal Education Committee of the Bar Council of India or on the National Legal Knowledge Council. (Prayed amended as per order of this Court, dated 02.07.2015, made in M.P.(MD) No.4 of 2015)

For Petitioner

For R1

...

...

Mr.G.Prabhu Rajadurai for Mr.K.K.Ramakrishnan Mr.G.R.Swaminathan Assistant Solicitor General of India

For R2

...

Mr.A.L.Somayaji Advocate General for Mr.M.Alagadevan, Special Government Pleader

For R4

...

Mr.S.R.Rajagopal

For R6

...

Mr.D.Selvam for Mr.M.Subash Babu

For R8

...

Mr.R.Alagarsamy

ORDER (Order of this Court was made by S. MANIKUMAR, J.) Mr.B.Ashok, a practising Advocate of Madurai Bench of the Madras High Court, has sought for a Writ of Certiorari, to quash the notification of the Secretary, Bar Council of India, New Delhi, the 4th respondent

4

herein, dated 28.09.2013, G.O.(Ms)No.194, Law (LS) Department, dated 03.06.2015 and the consequential admission notification of the Registrar, Dr.Ambedkar Law University, Chennai, the 8th respondent herein, dated 04.06.2015 and consequently, entrust the functions stated in the Rules of Legal Education, 2008, either to the Legal Education Committee of the Bar Council of India or on the National Legal Knowledge Council. The impugned notification of the Bar Council of India, dated 28.09.2013, G.O.(Ms)No.194, Law (LS) Department, dated 03.06.2015 and the admission notification of the Registrar, Tamil Nadu Dr.Ambedkar Law University, Chennai, dated 04.06.2015, are extracted hereunder: BAR COUNCIL OF INDIA NOTIFICTION New Delhi, the 28th September, 2013 Report regarding Clause-28, Schedule-III, Rule-11 of the Rules of Legal Education-2008

Resolution No.231/2013.--The Bar Council of India vide Resolution No.182/2013 accepted the report submitted by the Hon'ble Member Mr.S.Prabakaran in regard to Clause 28, Schedule-III, Rule-11 of the Rules of Legal Education-2008. A copy of report dated 28.7.2013 along with Resolution of the Bar Council of India in this regard has been published in the Gazette of India vide Extraordinary, Part-III, Section-4, Published by Authority, No.251, New Delhi,

5 Saturday, September 28, 2013.

Thereafter Hon'ble Member has made few

corrections and deleted three lines of the first page of this report.

He has substituted ”limine”, word in place of “single line”in the report in Para-3 of first page and he has further deleted three lines which are reproduced below: “The Hon'ble Supreme Court although dismissed the writ petitions filed by the petitioner challenging the order passed by Madras High Court, but, Hon'ble supreme Court has not passed any speaking order.” The Bar Council of India at its meeting held on 29th September, 2013 vide item No.331/2013 considered the modified report dated 28.9.2013 submitted by Hon'ble Member, Mr.S.Prabakaran in regard to Clause-28, Schedule-III, Rule-11 of the Rules of Legal Education-2008 and passed the following Resolution:Resolution No.231/2013: Council has considered the Secretary's Note as well as modified report submitted by the Hon'ble Member, Mr.S.Prabakaran in regard to Clause-28, Schedule-III, Rule-11 of the Rules of Legal Education-2008.

The modified

report submitted by Hon'ble Member, Mr.S.Prabakaran is accepted and office is directed that this modified report be Gazetted in Gazette of India. Earlier report dated 28.7.2013 along with resolution which was published in Gazette of India vide: Extraordinary Part-III, Section 4, September 28, 2013 stands withdrawn. The modified report dated 28.9.2013 is given hereunder: Sir, As per Legal Education Rules-2008, Clause-28 (Rule of the Legal

6 Education Rules regarding maximum age for admission into law courses) has been challenged before various High Courts where interim orders to take admission has been given by the Courts and the same has been filed before the Supreme Court and the T.P.has been allowed as T.C. But it is still pending. The service has not been completed because the Respondents' addresses were not found. The same had been placed before the Council which decided to publish their names in the National Newspaper.

In the publication,

expenditure is too high. In the meanwhile, the Madras High Court has given a detailed order in the matter of M.Santosh Antony Vareed (W.P.No.14877/2009) and the aggrieved petitioner had filed the SLP No.138346/2010 against the said order before the Supreme Court and the Supreme Court has dismissed in limine. The order dated 11.03.2013:-“Upon hearing council, the court made the following Order:Dismissed.“ In a similar matter, in Ankit Bhardwaj vs. Bar Council of India 12528/2011, Punjab and Haryana High Court has set aside our rule as follows:“We find that the provisions of Clause-28 of Schedule-III appended to the Rules are beyond the legislative competence of the Bar Council of India. Clause-28 ultra vires the provisions of Section 7(1)9h) and (l), 24(1)(c)(iii) and (iiia) or Section 49(1)(af), (ag) and (d) of the Advocates Act. Even otherwise, the Rule is arbitrary as it introduces and invidious classification by dividing one Class of student into two artificial and irrational classes by prescribing the maximum age for admission to law courses. As a sequel to the above discussion, the writ petitions are allowed. The petitioners who have been admitted on the basis of

7 the Interim order would continue and their admission should not be cancelled on the ground that they did not fulfil the criteria of maximum age. “ Similar order has been passed by the Hon'ble Court in the matter below: 1.Nittan Gupta Vs. Bar Council of India 5258/2010; 2.Rajan Sharma Vs. Bar Council ofINdia 20966/2010; 3.Janaka Raj Vs.Bar Council of India 12097/2009; and 4.Lt.Col.(Retd.)Harjinder Singh Vs. State of Punjab and Haryana 11947/2009. There are other professional courses such as B.Ed., C.A., C.S., and M.B.A., there is no upper age limit to take admission in the professional courses even in the medical courses some of the states do not have upper age limit. Restriction of the age to take admission violates the fundamental right, Article-19 of the Constitution of India. Article 19(1)(g) give fundamental right to every citizen to practice any profession or to carry on any occupation, trade or business. Recently Hon'ble Supreme Court held that National Eligibility-cumentrance Test for admission to M.B.B.S. And B.D.S.Course proposed by MCI was in contravention of Article 19(1)(g). The undisputed facts are that the Bar Council of India is a statutory body constituted under Section-4 of the Advocates Act, 1961 (for brevity, 'the Advocates Act'). It is competent to lay down the standards of legal education and recognition of the degree in law for admission as an advocate. Section-7 of the Advocates Act lays down the functions of the Bar Council of India which includes promotion of legal education and to lay down standards of such education in consultation with the Universities in India and the State Bar Councils. Sections 15 and 49 of the Advocates Act further empower the Bar

8 Council of India to frame rules for carrying out all its functions. On 14.09.2008, the Bar Council of India passed Resolution No.110/2008 and formulated 'the Rules'.

The Rules have been basically formulated to

prescribe the standards of legal education and recognition of degrees in law for the purpose of enrolment as advocate and inspection of Universities for recognizing its degree in law under Section 7(1)(h) and (I), 24(1(c)(ii) and (iiia), 49(1)(af), (ag) and (d) of the Advocates Act. Schedule-III

appended

to

'the

rule'

prescribes

the

minimum

infrastructural facilities required in a Centre of Legal Education for applying permission to run law course with affiliation from an Indian University. Clause-28 of Schedule-III relates to age on admission and stipulates the age limit for admission in 3 year and 5 year law courses. It reads as under:-“28.Age on admission:-(a)Subject to the condition stipulated by a University on this behalf and the high degree of professional commitment required, the maximum age for seeking admission into a stream of integrated Bachelor of Law degree programmes is limited to twenty years in case of general category of applicants and to twenty two years in case of applicants from SC, ST and other Backward communities. (b)Subject to the condition stipulated by a University, and the general social condition of the applicants seeking legal education belatedly, the maximum age for seeking admission into a stream of Three year Bachelor Degree Course in Law, is limited to thirty years with right of the University to give concession of 5 further year for the applicant belonging to SC or ST or any other Backward Community.”

9 A bare perusal of Clause-28(a) shows that the maximum age for seeking admission into a stream of integrated Bachelor of Law degree programme (which is of 5 years duration) the age has been limited to 20 years in case of General category applicants and 22 years in case of applicants belonging to SC, ST and Other Backward Communities. Similarly, Clause-28(b) prescribes a cap of 30 years in respect of General category applicants as the maximum age limit for seeking admission into a 3 years Bachelor Degree Course in Law. However, in the case of SC, ST and Other Backward Community applicants, the concerned University has the right to give a concession of 5 years. The question arises, as to whether the Bar Council of India is competent to frame the Rules barring a person above the age of 45 years from enrolment as an Advocate was considered by Hon'ble the Supreme Court in the case of Indian Council of Legal Aid and advice and others Vs. Bar Council of India and another (1995) 1SCC 732. IN Para 9 of the Judgment, it has been held by their Lordships of Hon'ble the Supreme Court that Rule which operates at preenrolment stage cannot receive the shelter of Clause (ah) of Section 49(1) of the Advocates Act. Para-8 of the Judgment, which deals with the issue, reads as under:-“8.The newly added rule seeks to bar the entry of persons who have completed the age of 45 years on the date of application for enrolment as an advocate from being enrolled as such by the State Bar Council concerned.

While Section-24 of the Act

prescribes the minimum age for enrolment as twenty-one years complete, there is no provision in the act which can be said to prescribe the maximum age for entry into the profession. Since the Act is silent on this point the Bar Council of India was required to resort to its rule-making power. The rules made by

10 the Bar Council of India under Section 49(l) of the Act are in seven parts, each part having it own chapter. Part-VI is entitled “rules governing Advocates”and the said part has three chapters. Chapter-I sets out the restrictions on senior advocates and is relatable to Sections 16(3)and 49(1)(g) of the Act. Chapter-II lays down the standards of professional conduct and etiquette and is relatable to Section 49(1)9c) read with the proviso thereto and Chapter-III deals with “Conditions for right to practice: and is stated to be made in exercise of power under clause (ah) of subsection (1) of Section-49 of the Act. That clause reads as under:“(ah)the conditions subject to which an advocate shall have the right to practice and the circumstances under which a person shall be deemed to practice as an advocate in a court.” On the plain language of the said clause it seems clear to us that under the said provision the Bar Council of India can lay down the 'conditions' subject to which ”an advocate” shall have the right to practice. These conditions which the Bar Council of India can lay down are applicable to an advocate I.e.a person who has already been enrolled as an advocate by the State Bar Council concerned.

The conditions which can be prescribed

must apply at the post-enrolment stage since they are expected to relate to the right to practice. They can, therefore, not operate at the pre-enrolment stage. By the impugned rule, the entry of those who have completed 45 years at the date of application for enrolment is sought to be barred.

The rule

clearly operate at the pre-enrolment stage and cannot,

11 therefore, receive the shelter of clause (ah) of Section 49(1) of the Act.

Under the said clause conditions applicable to an

advocate touching his right to practice can be laid down and if laid down he must exercise his right subject to those conditions. But the language of the said clause does not permit laying down of conditions for entry into the profession. We have, therefore, no hesitation in coming to the conclusion that clause (ah) of Section 49(1) of the Act does not empower the Bar Council of India to frame a rule barring persons who have completed 45 years of age from the date of enrolment as an advocate. The impugned rule is, therefore, ultra vires the said provision.” The impugned Clause-28 dealing with the age on admission occurring in Schedule-III,appended to the Rules have been framed under Section-7(1)(h) and (I) and 24(1)(c)(iii) and (iiia), 49(1)(af), (ag) and (d) of the Advocates Act. Section-7 of the Advocates Act deals with the function of the Bar Council of India and Clause-7(1)(h) and (I) only dealt with such functions of the bar council of India, which are aimed at promoting to legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and to recognize the Universities whose degree in law shall be a qualification for enrolment as an Advocate. Therefore, this clause would not arm the Bar Council of India to incorporate the provisions in the Rules like Clause-28 concerning the age on admission to LL.,B. Course. Likewise, Section-24(1)(c) deals with person who may be admitted as an Advocate on a State Roll. It has got nothing to do with the age on admission and cannot be construed to have conferred power on the Bar Council of India to prescribe the maximum age for the purpose of admission to LL.B. Five

12 years' Course or LL.B., three years' Course. I find that the provisions of Clause-28 of Schedule-III appended to the Rules are beyond the legislative competence of the Bar Council of India. Clause-28 ultra vires the provision of Section 7(1)(h) and (I) and 24(1)(c)(iii) and (iiia) of Section 49(1)(af), (ag) and (d) of the Advocates Act.

Even

otherwise, the Rule is arbitrary as it introduces an invidious classification by dividing one Class of student into two artificial and irrational Classes by prescribing the maximum age for admission to law courses. Some of the persons, even after completed the age of more than 40 or 45 years completed the degree and enrolled in number of State Bar Council and many of them appeared in the All India Bar Exam and obtained Certificate of Practice. In such a circumstances, lot of ambiguity in the above Rule and striking down Clause-28 of Schedule-III appended to the Rule of Legal Education, 2008 (for brevity, 'the Rules'), framed by the Bar Council of India being ultra vires, unconstitutional and arbitrary and apart, the Clause-28 is total violation of not only fundamental rights but also violation of the principle of natural justice. In the larger interest in many of the State after due deliberations, the opinions has been formed, the Clause-28, Schedule-III, Rule-11 of the Rules of legal Education-2008, is ultra vires, unconstitutional and against the principles of the natural justice. In such circumstances, keeping in view the broader aspect and aforesaid reasons, the said Clause-28, Schedule-III, Rule-11 of the Rules of legal Education-2008 is hereby withdrawn. J.R.Sharma, Secy., [ADVT.III/4/Exty/96/13]” GOVERNMENT OF TAMIL NADU ABSTRCT

13 Legal Education – Prescription of age limit for admission to 3 year and 5 year Law degree courses – Orders – issued. Law (LS) Department G.O.(Ms)No.194

Dated 03.06.2015 kd;kj tUlk; - itfhrp 20 jpUts;Sth; Mz;L 2046 Read:

1)From the Director of Legal Studies Letter Rc.No. 962/A3/2015, dated 24.04.2015. 2)From the Registrar (i/c), Tamil Nadu Dr.Ambedkar Law University Letter No.C.F.ANo.959/Registrar/Law Admissions 2015, dated 27.04.2015. ***** ORDER: Upto the academic year 2008-2009 there was no upper age limit for admission to the three year B.L.degree course. An upper age limit of 21 years was prescribed for admission to the 5 year integrated B.L.degree course. However, this age limit was not applicable to candidates belonging to SC/ST community. 2.In 2008, the Bar Council of India framed the Rules of Legal Education, 2008. Clause 28 under Schedule-III to Rule 11 of the Rules of Legal Education, 2008, provided for the upper age limit as follows:(i)For the 5 year integrated B.L.programme, 20 years for general category applicants and 22 years for SC/ST/OBC applicants.

14 (ii)For the 3 year B.L.course, 30 years for general category applicants and 35 years for SC/ST/OBC applicants. 3.Subsequent to the Bar Council of India's Rules of Legal Education, from the academic year 2009-2010 upper age limits have been prescribed for admission to the 3 year law degree course and the 5 year law degree course in Tamil Nadu. 4.In 2013, the Bar Council of India withdrew the rule pertaining to age restriction because the Punjab and Haryana High Court struck down the provision on the ground that the Rules are beyond the legislative competence of the Bar Council of India. 5.The Director of Legal Studies in his letter 1st read above has recommended that the age restriction which is in force at present for admission to Government Law Colleges may continue in the interest of the legal education. 6.The Registrar (i/c), Tamil Nadu Dr.Ambedkar Law University, Chennai in his letter 2nd read above, has requested the Government to issue necessary instructions/orders as to whether admission to various law courses offered in the existing affiliated Government Law Colleges by the Tamil Nadu Dr.Ambedkar Law University is to follow the existing eligibility criteria for age as it is in practice till the academic year 2014-2015. 7.The Government after careful consideration have decided to revert to

15 the pre 2008-2009 position and accordingly, the Tamil Nadu Dr.Ambedkar Law University is directed to prescribe no age limit for 3 year Law degree course and an upper age limit of 21 years (except for SC/ST candidates) for 5 year integrated Law degree course in the Government Law Colleges and in the Tamil Nadu Dr.Ambedkar Law University, as followed upto the academic year 2008-2009. (BY ORDER OF THE GOVERNOR)

S.S.POOVALINGAM, SECRETARY TO GOVERNMENT (i/c).”

THE TAMIL NADU Dr.AMBEDKAR LAW UNIVERSITY (State University Established by Act No.43 of 1997) “Poompozhil”, 5, Dr.D.G.S.Dhinakaran Salai, Chennai-600 028. Advt.No.959/Regr/Law Admns./2015. ADMISSION NOTIFICATION: 2015-2016 Applications are invited from eligible candidates for admission to the following Law Courses for the Academic Year 2015-206. I.COURSES OFFERED IN UNIVERSITY CAMPUS SCHOOL OF EXCELLENCE IN LAW (SOEL) U.G.PROGRAMMES (REGULAR) Courses

Duration

Qualifying Examination

Eligible Minimum Marks (in all Maximum subjects)* Limit (as SC/ST OTHERS 01.06.2015) SC/ST

B.A.LL.B.(Hons.)

5 Years

HSC(10+2) / CBSE / Other 60%

70%

No

Age on

OTHERS 21

16 Degree Course

Examinations recognized as equivalent thereto.

Age

Years

Limit

B.B.A.LL.B.(Hons.) Degree Course

5 Years

HSC(10+2) with Commerce group subjects/Other Examinations with relevant subjects recognised as equivalent thereto./

B.C.A.LL.B.(Hons.) Degree Course

5 Years

HSC (10+2) with Computer Science as one of the subject/Other examinations with relevant subjects recognised as equivalent thereto.

LL.B.(Hons.) Degree Course.

3 Years

Any Degree viz., 55% B.A./B.Sc.,/B.Com./B.B.A ./B.E./B.Tech./M.B.B.S./ B.Pharm., etc.

60%

No Age Limit

*NRI candidates: Eligibility Minimum marks for all 5 year Integrated Honours Courses: 60% and 3 year LL.B.(Hons).55% P.G.PROGRAMMES (C.B.C.S.) (REGULAR) Course

Duration

Branch

I

Specialisation

Eligibility

Intellectual Property Law

II

Business law

III

Constitutional Rights

IV

LL.M.Degree

2 years

V

International Organization

Environmental Order

Law

&

Law

Law

and

Human A pass in B.L./LL.B. (either 5 years or 3 years with 45% under and new regulations or 40% under old regulations Legal

Criminal Law and Criminal Justice

17 VI

Administration

Human Rights Education

and

Duties

VII Labour and Administrative Law

VIII

Taxation Law

IX

DISTANCE EDUCTION PROGRAMMES Course

Duration

M.C.L.

2Years

Post Graduate 1 Year Diploma

Specialisation

Eligibility

Master of Corporate Laws (M.C.L.)

A pass in any Degree Course/Candidates who are pursuing other courses after graduation may also apply.

Business Law (P.G.D.B.L)

Environmental Law (PG.D.E.L)

Information Technology Law (P.G.D.I.T.L)

Intellectual Property Law (P.G.D.I.P.L.)

Labour Law (P.G.D.L.L.)

Human Rights & (P.G.D.H.R. & DE)

Duties

Cyber Forensic (P.G.D.C.F.&I.S)

Internet

and

Criminal Law, Criminology Science (P.G.D.C.L.C.&F.S)

Education

Security

& Forensic

18

Law Librarianship (P.G.D.L.L.)

Medico-Legal Aspects (P.G.D.M.L.A.)

Consumer Law & Protection (P.G.D.C.L.&P)

Maritime Law (P.G.D.M/L.) Certificate

6 months

Course in Documentation

HSC(10+2) or equivalent

II.COURSES OFFERED AT AFFILIATED GOVERNMENT LAW COLLEGES IN TAMIL NADU (REGULAR) Courses

Duration

Qualifying Examination

Eligible Minimum Maximum Marks (in all Limit (as subjects)* 01.06.2015) SC/ST

B.A.LL.B. Course

Degree 5 Years

LL.B.Degree Course 3 Years

2.

OTHERS SC/ST

HSC(10+2) / CBSE / Other 40% Examinations recognized as equivalent thereto.

45%

Any UG Degree Viz. 40% B.A.,/B.Sc.,/B.Com. Etc.,

45%

Age on

OTHERS

No Age

21

Limit

Years

No Age Limit

In the supporting affidavit, the petitioner has contended that

considering the importance of quality legal education, right from the beginning, the 14th Law Commission Report (1953), 131st Law Commission Report (1998) and 184th Law Commission Report (December, 2002), the National Knowledge Commission Report, 2007, have emphasized the reformative steps to be taken, to revamp and upgrade the entire legal education. 3.

With the object of achieving high quality and standard legal

19

education, the Bar Council of India, New Delhi, the 4th respondent herein, incorporated the Rules of Legal Education, 2008, in Part IV of the Bar Council of India Rules, by exercising the powers, under Section 7(1)(h) and (i), 24(I)(c)(iii) and (iiia), 49(1)(af), (ag) and (d) of the Advocates Act, 1961. These rules have been framed by the Bar Council of India, in consultation with the Universities and the State Bar Councils. After due approval, the Bar Council of India, adopted the same, in its meeting held on 14.09.2008, vide resolution No.110 of 2008. 4.

For the first time in the history of legal education, upper age

limit has been fixed. The maximum age limit for applying to a three year degree law course, is 30 years, with five years of extension for SC/ST and other backward communities. Accordingly, prospectus was issued by the Government of Tamil Nadu. W.P.No.14877 of 2009 was filed before the Principal Bench of this Court, with a prayer, challenging the prospectus, issued for three year B.L.Degree Course 2009-10. A consequential prayer was also sought for, directing the

respondent therein, to accept the

application for the three year B.L. Course admission, by relaxing the instructions specified in Column No.2(iii) and to condone the excess eight days. The said writ petition was dismissed, upholding the age limit for

20

applying to degree course and that the said decision is reported in 2009 (8) MLJ 1677 [M.Santhosh Antony Vareed v. The Registrar, Tamil Nadu Dr.Ambedkar Law University, Chennai].

5.

One of the members of the Madurai Bar Association,

Mr.S.Muthukumar, has filed W.P.No.11407 of 2013, for a direction to the Bar Council of India, to issue necessary orders, to all the State Bar Councils of India, restraining them from enrolling any person, having LLB Degree, obtained in violation of Rules of Legal Education, 2008. Consequently, the petitioner therein has also sought for a direction to cancel the enrolment of persons, having LLB degree, obtained in contravention of Legal Education Rules, 2008. 6.

During the course of hearing in W.P.No.11407 of 2013, the

Bar Council of India has filed a counter affidavit, stating that the Punjab and Haryana High Court has allowed a number of writ petitions, quashing Clause 28, Schedule III to Part IV of Rules of Legal Education, 2008, fixing age limit for admission incorporated in the Rules, as ultra vires and contrary to the provisions of the Advocates Act, 1961. In W.P.No.11407 of 2013, an interim order was passed by this Court. Being aggrieved by the

21

same, the Bar Council of India has preferred S.L.P.(CC)Nos.14408 to 14412 of 2013, before the Hon'ble Apex Court. 7.

Counter affidavit of the Bar Council of India, in the abovesaid

writ petition, is to the effect that in the writ petitions, filed before the Andhra Pradesh, Karnataka and other High Courts, challenging the upper age limit for admission to Law Colleges, interim stay has been granted and hence, the Bar Council of India has filed Transfer Petitions in Tr.C.M.P.Nos.857 to 866 of 2009 before the Apex Court, to hear all the matters, along with S.L.P.(CC)Nos.14408 to 14412 of 2013. 8.

At the meeting of U.G. Board of Studies and the Board of

Studies for the B.A., B.L., (Hons.) Degree Course, held on 10.01.2009, it was resolved to recommend to the Syndicate for the adoption of age on admission as prescribed in the Bar Council of India Rules, 2008, from the academic year 2009-10, recommended by its Legal Education Committee, for implementation by the Universities imparting legal education. The resolution of the said Board of Studies was approved by the Syndicate at its 92nd Meeting held on 21.01.2009.

On 19.05.2009, the Tamil Nadu

Government, in its letter No.10718/LS/2009, have decided to adopt the age on admission for the law degree courses, as prescribed by the Bar

22

Council of India. 9.

The Bar Council of India, in its counter affidavit, filed in

W.P.(MD)No.11407 of 2013, has further stated that in S.L.P.No.22337 of 2008 [Bar Council of India v. Bonnie FOI Law College and others], the Hon'ble Supreme Court has appointed a Three Member Committee, under the Chairmanship of Mr.Gopal Subramaniam, the then Solicitor General of India, Mr.N.N.Krishnamani, the then President of the Supreme Court Bar Association and Mr.S.N.P.Sinha, the then Chairman of Bar Council of India, to examine the issues, relating to affiliation and recognition of law colleges and the Supreme Court were entrusted the task, to the Committee, in the following terms, “The entire future of the legal profession depends on ultimate product of these law colleges. Looking to the gravity and seriousness of the matter, we request the learned Solicitor General and President of the Bar Association and the Chairman, Bar Council of India to look into the matter seriously and submit a report to this Court, as expeditiously as possible. They would be at liberty associate experts or any other person which they deem it appropriate.” 10.

According to the petitioner, the Three Member Committee

sought for the views of the following legal luminaries and experts,

23

“Shri F.S. Nariman, Senior Advocate; Shri Soli Sorabjee, Senior Advocate and former Attorney General for India; Shri P.P. Rao, Senior Advocate; Prof. Upendra Baxi, Professor of Law, University of Warwick; Hon’ble Dr. Justice Dhananjaya Y. Chandrachud, Judge, Bombay High Court; Prof. (Dr.) N.R. Madhava Menon, former Director, National Law School of India University, Bangalore & former Vice-Chancellor, National University of Juridical Sciences, Kolkata; Prof. (Dr.) N.L. Mitra, former Director, National Law School of India University, Bangalore and former Vice-Chancellor, National Law University, Jodhpur; Prof. G. Mohan Gopal, Director, National Judicial Academy, Bhopal; Shri Dushyant Dave, Senior Advocate; Shri Shyam Divan, Senior Advocate; Dr. Sam Pitroda, Chairman, National Knowledge Commission; Prof. B.B. Pande, NHRC Chair Professor, National Law School of India University, Bangalore; Prof. Ved Kumari, Professor

of

Law,

University

of

Delhi;

Dr.

Usha

Ramanathan, Member, Advisory Council for India; Shri S. Gopakumaran Nair, Advocate & former Chairman, Bar Council of India; Shri Ashok Parija, Senior Advocate; Orissa High Court; Shri C.K. Sarma Barua, Advocate General, State of Arunachal Pradesh; Shri Saikrishna Rajagopal, Advocate; Shri Dayan Krishnan, Advocate and Shri Sanjeev Sachdeva, Advocate.”

24

11.

Pro bono litigant has further submitted that after consulting

the experts and various eminent persons, the Committee submitted its report on 06.10.2009, in favour of upholding the Rules of Legal Education, 2008. In addition, the Committee has also opined that the All India Bar Examinations should be introduced by the Bar Council of India, as a requirement, prior to enrolment by the State Bar Councils.

The

Committee has submitted its report on 06.10.2009 and the Hon'ble Supreme Court of India, directed the report to be placed before the Bar Council of India. Thus, the report was tabled before the Bar Council of India, which approved the Report unanimously, subject to one amendment. It was the suggestion of the Bar Council that all the law schools and colleges should be mandatorily required to establish legal aid clinics/centres to provide inexpensive and expeditious legal advice to the needy sections of our society. This suggestion was accepted by the Three Member Committee and subsequently incorporated in the report. Once again, the report was placed before the Hon'ble Supreme Court, which issued a direction to the Bar Council to implement the report. The case was posted for hearing on 14.12.2009. On that day, Mr.Gopal

25

Subramaniam, the then Solicitor General of India, submitted that the first bar examination would be conducted in July, 2010, by a specially constituted independent body. The Hon'ble Supreme Court has further directed the Central Government to ensure that the entire programme framed by the Three Member Committee, is operationalised forthwith. Thus, the Rules of Legal Education, 2008, was impliedly approved by the Hon'ble Supreme Court, which also contains, Clause 28 of Schedule III of the Rules of Legal Education, 2008, regarding prescription of upper age limit for applying to three year degree course.

12.

When the matter stood thus, the newly elected Bar Council

members, without considering the history and background, as to how, the Rules of Legal Education, 2008, were incorporated in the Bar Council of India Rules, and without considering the dismissal of the SLP filed against the judgment of this Court in W.P.No.14877 of 2009, dated 09.09.2009, reported in 2009 (8) MLJ 1677 [M.Santhosh Antony Vareed v. The Registrar,

Tamil

Nadu

Dr.Ambedkar

Law

University,

Chennai],

appointed Mr.S.Prabakaran, as One Man Committee, to re-consider the age restriction clause, incorporated in Clause 28 of Schedule III of the

26

Rules of Legal Education, 2008.

The said One Man Committee, by

observing that the age restriction violates Article 14 of the Constitution of India,

has

recommended

for

its

deletion.

The

Committee's

recommendation has been accepted by the Bar Council of India and passed a notification, dated 28.09.2013, withdrawing Clause 28, Schedule III of the Rules of Legal Education, 2008. Notification has been published on 31.08.2013.

13.

Pro bona litigant has further submitted that when the Bar

Council of India was taking steps to implement the notification, dated 31.08.2013, in the proposed enrolment, scheduled for the month of October, 2014, Mr.S.Muthukumar, the petitioner in W.P.No.11407 of 2013, filed for a Writ of Mandamus, for the reliefs, stated supra, and interim stay of the operation of the notification was sought for. At this juncture, the learned counsel appearing for the Bar Council of India, undertook that the Bar Council of India, would not implement the same, in the proposed enrolment, scheduled for the month of October' 2013. Thus, the implementation of the notification was deferred. However, by way of abundant caution, the petitioner therein, has also filed M.P.No.1

27

of 2014, seeking for an amendment of the prayer, by including a relief of declaration of withdrawal of notification of the Bar Council of India, dated 28.09.2013, as illegal. Arguments were heard by the learned single Judge.

14.

In the mean while, another W.P.No.10315 of 2013, was filed

by another Advocate, Mr.V.Ramesh. In the said writ petition, averments were made that number of persons have enrolled by the Bar Council of Tamil Nadu and Puducherry, the 6th respondent herein, who got admission in Law Colleges, after June, 2009 in various colleges of the neighbouring States, ignoring the age limit and suppressing criminal cases. Though it was contended that the said Rule has been implemented by Dr.Ambedkar Law University, Chennai, 8th respondent herein, from the Academic year 2009 onwards, taking note of the rival submissions, a learned single Judge, has passed the following order, “One such rule is Rule 28 of the Legal Education Rules, with regard to ceiling on age of the candidates to get admission into law college. Those candidates who got admission in violation of any of the rules including Rule 28 of the legal education are not entitled to get enrolment. If anybody got already enrolled, the Bar Council of Tamil Nadu

28

has got power to take action, including suspension and to remove as per law. In view of that, the Bar Council of Tamil Nadu is directed to find out the violations in the matter of enrolment of candidates including those above three candidates and similarly placed persons and the candidates who got admission into Law College, after June, 2009 and take appropriate action including suspension first and to remove then after enquiry.”

15.

Pursuant to the above, the Bar Council of Tamil Nadu and

Puducherry, Chennai, has issued show cause notices to many persons. An order of suspension was also made. Now, Dr.Ambedkar Law University, Chennai, the 8th respondent herein, has issued an admission notification, dated 04.06.2015, for the three year B.L. Degree course, in which, there is no age restriction for admission. Challenging the same, the present writ petition has been filed for the reliefs, stated supra.

16.

Assailing the correctness of the notification of the Bar

Council of India, dated 28.09.2013, Mr.K.K.Ramakrishnan, learned counsel for the petitioner submitted that fixing the upper age limit for admission to law degree course, is one of the main considerations to

29

maintain the legal standards, quality in education and that is why, before incorporating the Rules of Legal Education, 2008, views of many experts were taken into consideration.

17.

According to him, as per Section 7(1)(h) of the Advocates

Act, 1961, the Bar Council of India shall 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. As per Section 10(2)(b) of the said Act, the Bar Council of India shall constitute a legal education committee, consisting of ten members, of whom, five shall be persons elected by the Council from amongst its members and five shall be persons co-opted by the Council, who are not members thereof. He also invited the attention of this Court to Section 15 of the abovesaid Act and submitted that the Bar Council of India is empowered to make rules.

18.

Inviting the attention to Chapter III of Part II of the Bar

Council of India Rules, which deals with constitution, functions and

30

procedure to be followed by committees of the Bar Council of India and in particular, Rule 6 of the said Chapter, which deals with Legal Education Committee and Rule 8, dealing with the powers and duties of the Legal Education Committee, Mr.K.K.Ramakrishnan, learned counsel for the petitioner submitted that such Committee shall have the powers to make its recommendations to the Council for laying down the standards of legal education for the Universities, to visit and inspect Universities and report the results to the Council.

19.

Referring to Part III of the abovesaid Rules, dealing with the

matters, relating to State Council and Part IV, dealing with the rules of legal education, learned counsel for the petitioner submitted that the Rules of Legal Education, 2008, have been framed to monitor the standards of legal education and recognition of degrees in law, for the purpose of enrolment as advocate and inspection of Universities for recognizing its degree in law, under Sections 7(1)(h) and (i), 24(1)(c)(iii) and (iiia), 49(1)(af), (ag) and (d) of the Advocates Act, 1961. He submitted that the notifications now impugned in this writ petition, are contrary to the abovsaid Statutory provisions.

31

20.

According to the learned counsel, what is upheld in a

decision of this Court in M.Santhosh Antony Vareed v. The Registrar, Tamil Nadu Dr.Ambedkar Law University, Chennai reported in 2009 (8) MLJ 1677, is the prescription of upper age limit for admission to law degree courses in the State of Tamil Nadu and that the same view has been taken by Hon'ble Mr. Justice K.Chandru, in a subsequent writ petition.

21.

Inviting the attention of this Court to the 184th Report of the

Law Commission, under the Chairmanship of the Former Hon'ble Mr. Justice M.Jagannadha Rao, learned counsel for the petitioner submitted that the Bar Council of India, in its letter, dated 03.08.2000, had agreed to implement the recommendation of the Legal Education Committee, on the working paper of the Law Commission, without raising any objections and that the proposals of the Bar Council of India, in its letter, dated 03.08.2000, regarding Section 7(1)(h), reads as follows: “to lay down standards of professional legal education in accordance with the recommendations of the Legal Education Committee of the Bar Council of India, which,

32

inter

alia,

includes

curriculum,

teaching

methods,

examination, admission of students, number of teachers, location and infrastructure requirements, and management in consultation with…”

22.

The Bar Council of India, in its letter, dated 03.08.2000, has

agreed to implement the recommendations of the Legal Education Committee, on the working paper of the Law Commission, and to lay down Standards of Legal Education Committee of the Bar Council of India, on many subjects, including admission of students.

23.

It is the submission of the learned counsel for the petitioner

that when the Bar Council of India had agreed to lay down the standards of legal education, including admission of students and when the decision of this Court in M.Santhosh Antony Vareed's case (cited supra), has been upheld by the Hon'ble Apex Court, then there is no need for appointment of a One Man Committee. He also submitted that when the Three Member Committee Reports were directed to be placed before the Bar Council of India and Legal Education Committee and accordingly, when a emergency meeting of the Bar Council of India and Legal Education Committee was

33

held at 10.30 P.M., on 16.04.2011 (Saturday) and 17.04.2011 (Sunday) in New Delhi, in the presence of Hon'ble Mr.A.P.Misra, Former Judge of the Supreme Court and others and when the reports submitted by the Three Member Committee were accepted and thereafter, placed before the Hon'ble Supreme Court, there is absolutely no necessity for appointment of a One Man Committee to go into the issue, regarding the age restriction clause, incorporated in the Rules of Legal Education, 2008.

24.

Learned counsel for the petitioner further submitted that

when the

contention of the Bar Council of India, before the Hon'ble

Supreme Court of India, was to the effect that Clause 28 of the Legal Education Rules, is in conformity with Sections 7(1)(h) and (i), 24(1)(c)(iii) and (iiia), 49(1)(af), (ag) and (d) of the Advocates Act, 1961 and when the Apex Court has accepted the Three Member Committee Reports, regarding the age on admission to law courses, one of the issues involved in S.L.P.(C)No.22337 of 2008 and when the Hon'ble Supreme Court has directed the Central Government to ensure that the entire programme

framed

by

the

Three

Member

Committee,

to

be

operationalised forthwith, appointment of One Man Committee to once

34

again to go into the issue, relating to age restriction clause, incorporated in the Legal Education Rules, 2008, would amount to impliedly nullifying the decision of the Apex Court, which is not permissible.

25.

Learned counsel for the petitioner also invited the attention

of this Court to the counter affidavit filed by the Secretary, Bar Council of India, in SLP(Civil)No.1346 of 2010 (M.Santhosh Antony Vareed vs. The Registrar Tamil Nadu Dr.Ambedkar Law University and others), and submitted that when the rule prescribing upper age, for admission to law degree courses, was challenged, the Bar Council of India, affirming the process followed before making the rule, has filed a counter affidavit before the Hon'ble Supreme Court and submitted that the rules have been framed, only after consultation with the Universities, imparting legal education and State Bar Councils, under Section 7(1)(h)(i) 24(1)(c), with effect from the academic year 2008-09, and that the Bar Council of India has also submitted that any academic course requires a specific age limit, for admission. He also submitted that the Bar Council of India, in its counter affidavit, before the Hon'ble Apex Court, has also submitted that a young mind can be moulded, and matured mind cannot be moulded

35

very easily. He therefore submitted that when the Bar Council of India had accepted the report and reiterated the procedure followed, for amending the Rules, quite contrary to the same, the Bar Council of India has appointed a One Man Committee, ignoring the procedure hitherto followed, and the stand taken before the Hon'ble Supreme Court.

26.

Inviting the attention of this Court to the judgment of the

Punjab and Haryana High Court, learned counsel for the petitioner submitted that before the said Court, there was no representation by the Bar Council of India, when Clause 28 of the Rules of Legal Education, 2008, was challenged.

27.

On the decision reported in 1995 (1) SCC 732 [Indian

Council of Legal Aid & Advice v. Bar Council of India], which decided the question, as to whether, a person, who has completed the age of 45 years, on the date of which, he submits his application for his enrolment, as an Advoate, to the State Bar Council and whether he can be enrolled, learned counsel for the petitioner submitted that Section 7(1)(h) of the Advocates Act, 1961, was not considered in the said judgment and that

36

therefore, the said judgment cannot be applied to the facts on hand.

28.

Learned counsel for the petitioner further submitted that the

impugned notification, dated 28.09.2013, is nothing but an amendment, to Clause 28 of the Rules of Legal Education, 2008 and the procedure for amendment, as contemplated in Rule 47 of Chapter VI of Part IV of the Rules, has not been followed and thus, there is a violation. He further submitted that as per Rule 47 of Chapter VI of Part IV of the Rules, any amendment proposed by Bar Council of India, in the rules shall be carried only through consultation with the Universities and the State Bar Councils, by way of circulation of the proposal to the Universities and the State Bar Councils for the written submission within the scheduled notified date and after consideration of such written submission on merit. The legal Eduction Committee/Bar Council of India shall on consideration of the representation finalise the said amendments, which shall come into force by way of notification in the website. The Bar Council of India shall also send the hard copy of notification to the Universities. Provided that any provision in the Schedule may be amended by the Bar Council of India on the recommendation of the Legal Education Committee and the

37

same shall also be notified in the website of the BCI for enforcing the provision.

29.

According to the learned counsel, when the specific stand of

the Bar Council of India, before the Hon'ble Supreme Court in SLP(Civil)No.1346 of 2010 (M.Santhosh Antony Vareed vs. The Registrar Tamil Nadu Dr.Ambedkar Law University and others), was that the Rules of Legal Education, 2008, have been framed, by following a procedure, now, without following the abovesaid procedure, the Bar Council of India, seemed to have accepted the report of the One Man Committee, on the grounds inter alia that there is a violation of principles of natural justice.

30.

It is also his submission that the One Man Committee has

proceeded on the sole premise that there were divergent views expressed by different Hon'ble High Courts and hence, there is a violation of fundamental rights. According to the One Man Committee, Rule 28, in Schedule III to Part IV of the Rules of Legal Education, 2008, prescribing the upper age for admission, is ultra vires and unconstitutional.

38

31.

Thus, taking us through the various statutory provisions,

stand of the Bar Council of India, before the Hon'ble Supreme Court and this Court, learned counsel for the petitioner submitted that when there is a specific procedure for amending the rules and when provision under Rule 47 of the Bar Council of India Rules, makes it clear that any amendment proposed by the Bar Council of India, shall be only on the consideration of the representation of the Legal Education Committee and in the absence of any materials to indicate that the Legal Education Committee of the Bar Council of India has recommended for any amendment to the schedule, appointment of One Man Committee, to go into the issue of age limit for admission for Law Degree course, itself is illegal, contrary to the procedure, contemplated under the Statutory Rules and therefore, the report has no sanctity.

32.

Inviting the attention of this Court to Rule 45 of the Bar

Council of India Rules, learned counsel for the petitioner further submitted that any resolution passed earlier by Bar Council of India/Legal Education Committee, inconsistent with these Rules, shall not bind the

39

Bar Council of India and all other bodies, constituted in pursuance of the Advocates Act, 1961, after the rules come into force.

33.

According to him, as per Rule 43 of the said Rules, the Legal

Education Committee of the Bar Council of India shall be the dispute resolution body for all disputes relating to the legal education, which shall follow a procedure ensuring natural justice for such dispute resolution as is determined by it. He has also referred to the Saving Clause in Rule 46 and submitted that any action, decision or direction taken or directed by the Bar Council of India under any rule or regulation in force at any time earlier than these rules coming into force, shall be valid, binding on the institutions as the case may be, and remain in enforce notwithstanding anything contained in these Rules.

34.

According to him, now the dispute relates to legal education

and in particular to prescription of upper age limit for admission to law degree course.

In such circumstances, he submitted that the Legal

Education Committee of the Bar Council of India shall be the competent

40

authority to resolve the dispute and that the One Man Committee has no jurisdiction to go into the said issue. 35.

It is also the submission of the learned counsel for the

petitioner that even taking it for granted that the Bar Council of India had taken note of the decision of the Punjab and Haryana High Court and the divergent views, expressed by other High Courts, on the aspect of prescribing

upper age for admission to law degree course, the Bar

Council of India, should have referred the dispute to the Legal Education Committee of the Bar Council of India, who shall be the dispute resolution body for all disputes relating to legal education and that a One Man Committee ought not to have appointed and consequently, the acceptance of the report of the One Man Committee, by the Bar Council of India and deletion of Clause 28 of the Legal Education Rules, 2008, is wholly, without jurisdiction and inconsistent with Rule 43 of the Bar Council of India Rules. 36.

Learned counsel for the petitioner submitted that though the

Bar Council of India, in its resolution, dated 29.08.2013, has accepted the One Man Committee's report and issued the impugned notification, dated 03.06.2015, the same cannot be saved, even under Rule 46 of the Bar

41

Council of India Rules, wherein, the saving clause can protect only the action, decision or direction taken by the Bar Council of India, under the Rules and Regulations, in force at any time and therefore, the decision of the Bar Council of India, to appoint the One Man Committee, after coming into force of the Rules, is not in accordance with the statutory rules.

37.

Learned counsel for the petitioner further submitted that

withdrawal of SLPs filed by the Bar Council of India has no nexus with the object sought to be achieved. He further added that the Law Commission Reports, for the purpose of improving the standards and quality of Legal Education have been accepted by the Bar Council of India and further reports of the Three Member Committee constituted and placed before the Apex Court, cannot be given a go-by, by the Bar Council of India, solely on the basis of a One Man Committee. At this juncture, attention of this Court was also brought to the report of the Three Member Committee, wherein, the Committee has opined as follows: “The Committee, therefore, is of the view that the standards of legal education provided for in the 2008 BCI Rules, including the provisions on inspection, recognition

42

and

accreditation,

are

in

consonance

with

the

requirements of the time, and in fact, are suited to ensure the highest quality of legal education.”

38.

He also submitted that as regards Chapter IV, the Three

Member Committee has also opined that Chapter IV of the 2008 BCI Rules contains provisions vis-à- vis the Directorate of Legal Education, the responsibility of which include: (a) Continuing Legal education, (b) Teachers training, (c) Advanced specialized professional courses, (d) Education program for Indian students seeking registration after obtaining Law Degree from a Foreign University, (e) Research on professional Legal Education and Standardization, (f) Seminar and workshop, (g) Legal Research, (h) any other assignment that may be assigned to it by the Legal Education Committee and the Bar Council of India.

39.

Learned counsel for the petitioner further submitted that

though the Three Member Committee, has submitted its report on 06.10.2009 and on the directions of the Hon'ble Apex Court, the report was tabled before the Bar Council of India, which approved the Report unanimously, subject to only one amendment, suddenly, the Bar Council

43

of India has decided to appoint a One Man Committee to consider the question of prescription of upper age for admission to Law Degree courses and the same is illegal. According to him, the Bar Council of India has decided to implement the Legal Education Rules, 2008, strictly and therefore, it cannot go back.

40.

Placing reliance on a decision of this Court in K.Sakthi Rani

v. The Secretary, Bar Council of Tamil Nadu reported in 2010 (2) LW 746, learned counsel for the petitioner submitted that when the applicability of the Legal Education Rules, 2008, to the case of the petitioners therein, came up for consideration, the Hon'ble Division Bench of this Court, after considering the rival submissions, at Paragraph 92, has categorically held that the Rules of Legal Education, 2008, are framed in accordance with the powers conferred under Sections 7(1)(h) & (i), 24(1)(c)(iii) and (iiia), 49(a)(af), (ag) and (d) of the Advocates Act, 1961 and hence, they are constitutionally valid. He therefore submitted that when the Hon'ble Division Bench of this Court has upheld the validity of the Rules of Legal Education, 2008, appointment of One Man Committee, to go into the issue, based on the decision of the Punjab and Haryana

44

High Court and accepting his report, which is purely based on his own views and thus, passing a resolution, would amount to nullifying the decision of this Court and the Apex Court in Santhosh Antony Vareed's case (cited supra) and that the same cannot be accepted. In this context, attention of this Court was also invited to Paragraph 19 of K.Sakthi Rani's case (cited supra), wherein, the Hon'ble Division Bench of this Court has framed a specific question, as to whether, “the Rules of Legal Education, 2008, are in accordance with the powers conferred under Sections 7(1)(h) & (i), 24(1)(c)(iii) and (iiia), 49(a)(af), (ag) and (d) of the Advocates Act, 1961 or not?

41.

Reliance was also placed on a decision of this Court in State

of Tamil Nadu v. K.Shyam Sunder reported in 2011 (4) CTC 874, on the aspect of nullifying the decision of a Court and further contentions were made that earlier, the Bar Council of India has framed the Legal Educatin Rules, 2008, in consultation with the experts and taken a specific stand before the Hon'ble Supreme Court that prescription of age, was to promote the standands of legal education, got it approved and subsequently, now a different stand is taken before this Court.

45

42.

Insofar as Delhi High Court's case, relied on by the learned

counsel for the respondents, learned counsel for the petitioner submitted that the Rules of Legal Education, 2008, were not challenged and what was challenged was only the notification issued by the University and hence, learned counsel for the petitioner submitted that the said decision is not applicable to the said case. He further submitted that the impugned notification, dated 28.09.2013 of the Bar Council of India, does not say anything about the procedure that was followed, before making the amendment to the Rules. 43.

Learned counsel for the petitioner further submitted that all

along the Bar Council of India and the Legal Education Committee of the Bar Council of India have decided to implement the Rules of Legal Education, 2008 and there is no reason, as to why it should be changed. 44.

Referring to the counter affidavit filed by the Bar Council of

Tamil Nadu and Pondicherry, Chennai, in the present writ petition, learned counsel for the petitioner submitted that when the Rules of Legal Education, 2008, were framed in consultation with the experts and as per Section 7(1)(h), the functions of the Bar Council of India, shall be to

46

promote legal education and to lay down standards of such education in consultation with the Universities in India, imparting such education and State Bar Councils, the contention of the Bar Council of Tamilnadu and Pondicherry, Chennai that it has no role to play in promotion of legal education and laying down the standards, would tantamount to shutting its responsibilities.

He further submitted that the Bar Council of the

State cannot avoid its responsibilities, thereby, abdicate its powers to the Bar Council of India, ignoring its role to be played, in the matter of promotion of Legal Education and laying down the standards of such education. He submitted that the State Government cannot be a silent spectator.

45.

Referring to clause 2.6 of the University Grants Commission

(Affiliation of Colleges by Universities) Regulations, 2009, learned counsel for

the

petitioner

submitted

that

Bar

Council

of

India

is

a

Statutory/Regulatory body, to maintain standards of legal education.

46.

Inviting the attention of this Court to G.O.(Ms)No.194, Law

(LS) Department, dated 03.06.2015, by which, the Government have

47

issued orders, prescribing age limit for admission to three years and five years law degree courses, he further submitted that when the Director of Legal Services, by his letter dated 24.04.2015, has recommended the age restriction which is in force, at present, for admission to Government law colleges, to continue in the interest of legal education, no reasons have been assigned by the Government, as to why the Government have decided to revert to the pre 2008-2009 position and issued orders directing, Dr.Ambedkar Law University to prescribe no age limit for three years law degree course and upper age limit of 21 years (except for SC/ST candidates) for five years integrated law degree courses in Government Law Colleges and in Tamil Nadu Dr.Ambedkar Law University, as followed upto the academic year 2008-2009.

He also submitted that there is

absolutely no reason as to why there should be discrimination between a three years law degree course and five years law degree course, in the matter of prescribing upper age limit for admission to law degree courses.

47.

Based on the counter affidavit filed by Dr.Ambedkar Law

University, represented by its Registrar, Chennai, Mr.A.L.Somayaji, learned Advocate General submitted that only in the year 2008, upper

48

age limit has been fixed by the Bar Council of India, for the law degree courses. The said restriction was followed by the University. Clause 28 of the Legal Education Rules was withdrawn by the Bar Council of India. The University sought for clarifications from the Government of Tamilnadu, vide Letter No.C.F.No.959/Regr/Law Admission 2015, dated 27.04.2015.

Government

of

Tamil

Nadu

issued

an

order

in

G.O.(Ms)No.194, Law (LS) Department, dated 03.06.2015, wherein the Government have decided to revert to the pre-2008-2009 position and accordingly, Tamil Nadu Dr.Ambedkar Law University was directed to prescribe no age limit for three year law degree course and upper age limit of 21 years (except for SC/ST candidates) for 5 year integrated Law degree course in Government Law Colleges in Tamil Nadu Dr.Ambedkar Law University, as followed upto the academic year 2008-2009.

The

Syndicate of Dr.Ambedkar Law University, Chennai, has passed a resolution to adopt the qualification and norms prescribed by the Government in G.O.(Ms)No.194, Law (LS) Department, dated 03.06.2015. Based on the resolution dated 03.06.2015 passed by the Syndicate and the Government Order, Dr.Ambedkar Law University, represented by its Registrar, Chennai, has issued the impugned admission notification, dated

49

04.06.2015.

48.

Learned

Advocate

General

further

submitted

that

Dr.Ambedkar Law University, Chennai, is a State University established by an Act of State Legislature and it functions as per the provisions of the Act and Statutes made thereunder. As per Section 43(1)(b) of the Tamil Nadu Dr.Ambedkar Law University Act, 1996, the University can admit candidates, who fulfils the conditions prescribed therein. 49.

Learned Advocate General further submitted that in so far as

the qualifications for other professional courses like, Medicine and Engineering, is concerned, there is no upper age limit prescribed for admission of students and therefore, the impugned notification cannot be said to be violative of Article 14 of the Constitution of India. 50.

Placing reliance on the decision of the Punjab and Haryana

High Court in Ankit Bhardwaj vs. Bar Council of India, (W.P.No.12528 of 2011, dated 20.10.2011), the learned Advocate General submitted that clause 28 of schedule III appended to the Rules of Legal Education, 2008, has already been held as arbitrary and beyond the legislative competence of the Bar Council of India and that therefore, the decision

50

of the Bar Council of India, to remove the upper age limit, for admission to three years law degree course, cannot be said to be arbitrary or violative of the statutory provisions of either the Advocates Act, 1961 or the Bar Council of India Rules. He invited the attention of this Court to paragraph 7 of the above judgment. 51.

Learned Advocate General further submitted that the SLP

filed by the Bar Council of India against the judgment in Ankit Bhardwaj vs. Bar Council of India, (W.P.No.12528 of 2011, dated 20.10.2011) was dismissed on 05.01.2015. Referring to the judgment in K.Sakthi Rani vs. The Secretary to Bar Council of Tamilnadu, reported in 2010 (2) L.W. 746, he submitted that the challenge in the abovesaid case was in relation to the enrollment of the candidates above 45 years and therefore, the said judgment is inapposite to this case. 52.

Referring to the judgment of the Hon'ble Division Bench

judgments of the Punjab and Haryana High Court in Rajan Sharma Vs. The Bar Council of India and another [C.W.P.No.20966 of 2010, dated 20.10.2011]

and

Ankit

Bhardwaj

vs.

Bar

Council

of

India,

(W.P.No.12528 of 2011, dated 20.10.2011), learned Advocate General submitted that when the petitioners therein, sought for a prayer to strike

51

down clause 28 of the Rules of Legal Education, 2008, the Hon'ble Division Bench of the Punjab and Haryana High Court considered the validity of the Rules, with reference to the provisions of the Advocates Act, 1961 and taking note of the decision of the Hon'ble Apex Court in Indian Council of Legal Aid and Advice and others v. Bar Council of India and another reported in (1995) 1 SCC 732, held that the Bar Council of India is not armed with any power to incorporate a provision in the rules, like clause 28, concerning the age on admission to law degree course.

53.

Attention of this Court was invited to paragraph 8 of the

judgment in Indian Council of Legal Aid and Advice and others v. Bar Council of India and another reported in (1995) 1 SCC 732 considered by the Hon'ble Division Bench.

The said paragraph is extracted

hereunder:"8. The newly added rule seeks to bar the entry of persons who have completed the age of 45 years on the date of application for enrolment as an advocate from being enrolled as such by the State Bar Council concerned. While Section 24 of the Act prescribes the minimum age for enrolment as twentyone years complete, there is no provision in the Act which can be said to prescribe the maximum age for entry into the

52

profession. Since the Act is silent on this point the Bar Council of India was required to resort to its rule-making power. The rules made by the Bar Council of India under Section 49(1) of the Act are in seven parts, each part having its own chapters. Part VI is entitled "Rules Governing Advocates" and the said part has three chapters. Chapter I sets out the restrictions on senior advocates and is relatable to Sections 16(3) and 49(1)(g) of the Act, Chapter II lays down the standards of professional conduct and etiquette and is relatable to Section 49(1)(c) read with the proviso thereto and Chapter III deals with "Conditions for right to practice" and is stated to be made in exercise of power under clause (ah) of sub-section (1) of Section 49 of the Act. That clause reads as under: "(ah) the conditions subject to which an advocate shall have the right to practice and the circumstances under which a person shall be deemed to practice as an advocate in a court;" On the plain language of the said clause it seems clear to us that under the said provision the Bar Council of India can lay down the 'conditions' subject to which "an advocate" shall have the right to practice. These conditions which the Bar Council of India can lay down are applicable to an advocate, i.e., a person who has already been enrolled as an advocate by the State Bar Council concerned. The conditions which can be prescribed must apply at the post-enrolment stage since they are expected to relate to the right to practice. They can, therefore, not operate at the pre- enrolment stage. By the impugned rule, the

53

entry of those who have completed 45 years at the date of application for enrolment is sought to be barred. The rule clearly operates at the pre- enrolment stage and cannot, therefore, receive the shelter of clause (ah) of Section 49(1) of the Act. Under the said clause conditions applicable to an advocate touching his right to practice can be laid down, and if laid down he must exercise his right subject to those conditions. But the language of the said clause does not permit laying down of conditions for entry into the profession. We have, therefore, no hesitation in coming to the conclusion that clause (ah) of Section 49(1) of the Act does not empower the Bar Council of India to frame a rule barring persons who have completed 45 years of age from enrolment as an advocate. The impugned rule is, therefore, ultra vires the said provision."

54.

Reverting to the Hon'ble Division Bench judgment of the

Punjab and Haryana High Court, learned Advocate General also referred to paragraphs 9, 10 and 12, which are extracted hereunder:“9. The impugned Clause 28 dealing with the age on admission occurring in Schedule-III appended to the Rules have been framed under Section 7(1)(h) and (i) and 24(1)(c)(iii) and (iiia), 49(1)(af), (ag), and (d) of the Advocates Act. Section 7 of the Advocates Act deals with the function of the Bar Council of India and Clause 7(1)(h) and (i) only deals with such functions of

54

the Bar Council of India, which are aimed at promoting to legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and to recognize the Universities whose degree in law shall be a qualification for enrolment as an Advocate. Therefore, this clause would not arm the Bar Council of India to incorporate the provisions in the Rules like clause 28 concerning the age on admission to L.L.B. Course. Likewise, Section 24(i)(c) deals with person who may be admitted as an Advocate on a State roll. It has got nothing to do with the age on admission and cannot be construed to have conferred power on the Bar Council of India to prescribe the maximum age for the purposes of admission to L.L.B. Five years' Course or L.L.B. Three Years' Course . 10. We are left to deal with Section 49(1)(af) and (ag) of the Advocates Act. The aforesaid clause (af) deals with the minimum qualification required for admission to a course of degree in law in any recognized University and clause (ag) deals with the class or category of the persons entitled to be enrolled as Advocates. Clause (d) of Section 49 (i) of the Advocates Act deals with the standards of legal education to be observed by universities in India and the inspection of universities for that purpose. We are afraid that even this Clause would not extend to grant competence to Bar Council of India to incorporate a provision concerning the maximum age for admission to L.L.B. Course. The matter has been discussed in detail in Indian

55

Council of Legal Aid and Advice's case (supra) by Hon'ble the Supreme Court. It is also relevant to mention that a similar view was taken by a Division Bench of Madras High Court in the case of M. Radhakrishnan v. The Secretary, the Bar Council of India, AIR 2007 Madras 108. Therefore, we find that the provisions of Clause 28 of Schedule-III appended to the Rules are beyond the legislative competence of the Bar Council of India. Clause 28 ultra vires the provisions of Sections 7(1)(h) and (i), 24(1)(c) (iii) and (iiia) or Section 49(1)(af) (ag) and (d) of the Advocate Act. Even otherwise, the Rule is arbitrary as it introduces an invidious classification by dividing one Class of student into two artificial and irrational Classes by prescribing the maximum age for admission to law courses. 12. As a sequel to the above discussion, the writ petitions are allowed. The petitioners who have been admitted on the basis of the interim order would continue and their admissions should not be cancelled on the ground that they did not fulfill the criteria of maximum age."

55.

Learned Advocate General also relied on a decision in

Mr.Kshitij Sharma and another vs. The Bar Council of India and another (Writ(PIL) Petition No.2497/2015, dated 04.03.2015) of the Hon'ble Division Bench judgment of the Rajasthan High Court at Jaipur Bench and submitted that when the University issued a notification,

56

prescribing age limit for admission to law degree courses, following the decision of the Punjab and Haryana High Court, stated supra and taking note of the fact that a large number of writ petitions have been filed in the High Courts, across the country with reference to the age factor, the Hon'ble Jaipur Bench was of the view that application of the students for Common Law Admission Test 2015, should not be rejected on the grounds of prescription of upper age.

He also relied on a decision of the

Allahabad High Court in Devasheesh Pathak and 20 others vs. Bar Council of India, through Secretary and 2 others, (Writ – C No.5219 of 2015, dated 26.02.2015), in which prescription of the maximum age limit for admission to law degree course in the Common Law Admission Test 2015 (in short CLAT-2015) was sought to be quashed. Here again, the Allahabad High Court after considering the judgments in Ankit Bhardwaj vs. Bar Council of India, (W.P.No.12528 of 2011, dated 20.10.2011), Rajan Sharma Vs. The Bar Council of India and another [C.W.P.No.20966

of

2010,

dated

20.10.2011],

quashed

the

notification.

56.

Placing reliance on the decision in Kusum Ingots & Alloys

57

Ltd., vs. Union of India, reported in 2004 (6) SCC 254 and the decisions of the Punjab and Haryana High Court in Ankit Bhardwaj vs. Bar Council of India, (W.P.No.12528 of 2011, dated 20.10.2011), Mr.Kshitij Sharma and another vs. The Bar Council of India and another (Writ(PIL)

Petition

No.2497/2015,

dated

04.03.2015),

learned

Advocate General further submitted that the other High Courts have exercised their jurisdiction, and laid down the law regarding the validity of clause 28 of the Legal Education Rules.

57.

Learned Advocate General further submitted that once the

validity of a central enactment is tested, doctrine of comity comes into effect and that therefore, it is binding on other courts. Reference was made to the decisions made in Kusum Ingots & Alloys Ltd., vs. Union of India, reported in 2004 (6) SCC 254, Union of India vs. Textile Technical Tradesmen Association, reported in 2014 (6) CTC 427, Shiv Kumar vs. Union of India, reported in AIR 2014 Karnataka 73. As the decision of the Punjab and Haryana High Court and other courts relate to Central law and the rules framed thereunder and considering that uniformity has to be followed throughout the country, it is binding on this

58

Court as well.

He distinguished the judgment in M.Santhosh Antony

Vareed vs. Registrar, Tamil Nadu Dr.Ambedkar Law University, reported in 2009 (8) MLJ 1677, stating that in the abovesaid judgment, there was no challenge to the rules.

58.

According to him, there is no case of nullifying the judgment

of the Courts and on the contra, it is an implementation of the decisions of the Punjab and Haryana High Court, Rajasthan and other High Courts, to have uniformity throughout the country, in so far as the upper age limit is concerned, for admission to law degree courses, is concerned. He further submitted that what was considered in K.Sakthi Rani vs. The Secretary to Bar Council of Tamilnadu, reported in 2010 (2) L.W. 746 was only a challenge to cancellation of enrollment of those who had already completed law degree course at the time of coming into force of the legal education rules 2008 and that the same is inapplicable to the facts of this case.

59.

He further submitted that even in Dr.Ambedkar Law

University Statutes or Ordinance, there is no provision restricting the

59

candidates for admission, by prescribing any upper age limit and therefore, the Government of Tamil Nadu have decided to implement the Bar Council of India's decision. It is also his further contention that the resolution of the Syndicate has not been challenged and therefore, it is not open to the petitioner, to seek for any amendment, challenging G.O.(Ms)No.194, Law (LS) Department, dated 03.06.2015.

For the

abovesaid reasons, learned Advocate General prayed for dismissal of the writ petition.

60.

Based on the counter affidavit filed by the Joint Secretary,

Bar Council of India, New Delhi, Mr.S.R.Rajagopal, learned counsel for the Bar Council of India submitted that Section 7(1)(h) of the Advocates Act, 1961 read with Section 49(1)(d) of the Advocates Act, empowers the Bar Council of India to make rules, prescribing standards of legal education to be observed by the Universities in India and inspection of Universities for that purpose. He further submitted that Bar Council of India is empowered to visit and inspect the Universities for the purpose of recognition to law colleges and other infrastructures.

The Joint

Secretary, Bar Council of India, New Delhi, has denied the allegation of

60

enrollment of unqualified candidates.

61.

He further submitted that Rules 2008 (Part IV of Bar Council

of India Rules) were framed for the entire country under Section 7(1)(h) and (i), (m), 24(1)(c)(iii) and 3(a), 49(1), (af), (ag) and (d) of the Advocates Act, 1961.

He also submitted that Section 10(2)(b) of the

Advocates Act, 1961, empowers the Bar Council of India to constitute a Legal Education Committee. Section 10(2)(b) of the Advocates Act, 1961, is reproduced hereunder:“The Bar Council of India shall constitute a legal education committee consisting of ten members, of whom five shall be persons elected by the Council from amongst its members and five shall be persons coopted by the Council who are not members thereof.”

62.

A High Level Legal Education Committee is constituted

consisting of a Retired Supreme Court Judge as Chairman of LEC and a sitting Chief Justice of any High Court, other Judges, well known Academicians, UGC Chairman, Government representatives, high profile Jurist, and distinguished legal luminaries of the country etc., as other members/special invitees for regulating and maintaining standard of

61

Legal Education in the country.

63.

As per Section 2(xvi), Legal Education Committee means the

Legal Education Committee constituted by the Bar Council of India under the Act, composed of five members of the Bar Council of India nominated by the Bar Council of India and five co-opted members comprising the Chairman who has to be a former Judge of the Supreme Court of India, a sitting Hon'ble Chief Justice of a High Court, distinguished Professor of Law, the Law Secretary and the UGC Chairman. The Committee may also have some permanent invitees proposed by the Bar Council of India. Following are the members of the present as well as earlier Legal Education Committee of the Bar Council of India. The members of the Committee were, 1.Hon'ble Mr.Justice A.P.Misra, Former Judge, Supreme Court of India. Chairman, Legal Education Committee. 2.One sitting Chief Justice of any High Court (to be nominated) 3.Prof. (Dr) R.Venkata Rao, Vice Chancellor, NLSIU, Bangalore. 4.The Law Secretary, Government of India. 5.The Chairman, University Grants Commission. Legal Education Committee (Special Invitees)

62

1.Mr.Gopal Subramanium, Senior Advocate, Former Solicitor General of India, Former Chairman, Bar Council of India. 2.Hon'ble Mr.Justice Arun Mishra, Chief Justice, Kolkata High Court. 3.Hon'ble Mr.Justice Amit Rao, Chief Justice, Rajasthan High Court. 4.Hon'ble Mr.Justice Dinesh Maheshwari, Judge, Rajasthan High Court. 5.Hon'ble Mr.Justice Ajay Rastogi, Judge, Rajasthan High Court. 6.Hon'ble Mr.Justice Mohd.Rafiq, Judge, Rajasthan High Court. 7.Hon'ble Mr.Justice GovindMathur, Judge, Rajasthan High Court. 8.Prof. (Dr) R.VeaketaRao, Vice-Chancellor, National Law School of India University, Bangalore. 9.Prof.(Dr) Ranbir Singh Vice-Chancellor, National Law University, Delhi. 10.Prof.Satish C.Shastri, Dean, Faculty of Law, Mody Institute of Science & Technology. 11.Prof.(Dr) Gurdip Singh, Vice-Chancellor, RMLNLU, Lucknow.

64.

He further submitted that during the year 1993, Bar Council

of India by Resolution No.64/1993, dated 22.08.1993, added rule 9 in Chapter 3 of Part VI of the Bar Council of India Rules and that a resolution

63

passed by the council was gazetted on 25.09.1993, stating that a person who has completed the age of 45 years, on the date on which, he submits his application for his enrollment as an advocate to the State Bar Council shall not be enrolled as an advocate.

However, in Indian Council of

Legal Aid & Advice and others vs. Bar Council of India and another, reported in 1995 (1) SCC 732, the said rule was struck down as ultra vires of the Act and opposed to Article 14 of the Constitution of India. He also submitted that subsequently in furtherance of the powers conferred under Section 49(1)(ag), Bar Council of India Training Rules, 1995 came to be issued. Again, the said rule was the subject matter of a writ petition before the Hon'ble Supreme Court and in V.Sudeer vs. Bar Council of India and another, reported in 1999 (3) SCC 176, the rule was struck down.

The Hon'ble Supreme Court, at paragraphs

31 and 32 of the

judgment held that Advocates Act, 1961 requires certain amendments to Sections 7 and 24(1) bestowing powers on the Bar Council of India for prescribing such pre-enrollment training for prospective entrants of the Bar. He further submitted that in furtherance of the order of the Hon'ble Supreme Court dated 29.06.2009 and 06.10.2009, as approved by the Bar Council of India, vide resolution dated 24.10.2009, during the hearing of

64

the case filed by the Bar Council of India against Bonnie Foi Law College and others, a three member committee was constituted.

65.

Legal Education Rules 2008 was approved and adopted by the

Bar Council of India in its meeting held on 14.09.2008 vide resolution No.110.2008 and that the same was notified in the Gazettee of India vide Part III, Section 4, New Delhi, 21-27,2009 and that the same were called as the Rules of Legal Education, 2008.

66.

Clause 28 of Schedule III relates to admission which stipulates

age limit for admission into three years and five years law degree course. It reads as follows:''28.Age on admission.--(a) Subject to the condition stipulated by a University on this behalf and the high degree of professional commitment required, the maximum age for seeking admission into a stream of integrated Bachelor of law degree program, is limited to twenty years in case of general category of applicants and to twenty two years in case of applicants from SC, ST and other Backward communities. (b) Subject to the condition stipulated by a University, and the general social condition of the applicant seeking legal education belatedly, the maximum age for seeking admission

65

into a stream of Three Year Bachelor Degree Course in Law, is limited to thirty years with right of the University to give concession of 5 further year for the applicant belonging to SC or ST or any other Backward Community.''

67.

Learned counsel for the Bar Council of India further

submitted that clause 28 relating to age for admission into law degree course, was challenged in various High Courts. Interim orders suspending the operation of clause 28 for enabling the students to take up admission, were granted by various High Courts. 68.

In M.Santhosh Antony Vareed vs. Registrar, Tamil Nadu

Dr.Ambedkar Law University, reported in 2009 (8) MLJ 1677, this Court upheld the competence of the Bar Council of India to prescribe standards including age limit.

Order made in the above reported case was

challenged in SLP.No.13846 of 2010 and that the same was dismissed on 11.03.2013.

69.

He further submitted that in Ankit Bhardwaj vs. Bar Council

of India, (W.P.No.12528 of 2011, dated 20.10.2011), the Punjab and Haryana High Court struck down the abovesaid rule. Similar orders were

66

passed by the Hon'ble Division Bench of Punjab and Haryana High Court in Nittan Gupta vs. Bar Council of India 5258/2010, Rajan Sharma vs. Bar Council of India 20966/2010, Janka Raj vs. Bar Council of India, 12097/2009 and Lt.Col (Retd) Harinder Singh vs. State of Punjab and Haryana 11947/2009. Challenge to the rule was also made in State of Andra Pradesh, Assam, Calcutta, Chhattisgarh, Delhi, Himachal Pradesh, Kerala, Karnataka, Madhya Pradesh, Maharashtra, Punjab and Haryana, Rajasthan, Uttar Pradesh, Uttarakhand, Orissa, Jammu & Kashmir and more than 200 writ petitions have been filed and interim orders of stay of operation of rule 28 was obtained.

In furtherance of stay, several

students have joined the law courses and completed the same.

They

have also appeared for All India Bar Examination and got the certificate of practice.

70.

Learned counsel further submitted that a review petition

filed before the Punjab and Haryana High Court to deliver the judgment in Ankit Bhardwaj vs. Bar Council of India, (W.P.No.12528 of 2011, dated 20.10.2011) was also dismissed. Bar Council of India filed SLP No.14408-14412 of 2013 and the Hon'ble Supreme Court declined to grant

67

any interim order. Transfer petitions were filed in the Supreme Court for in T.P(C)No.857-866/2009.

On 31.08.2009, the Hon'ble Supreme Court

issued notice and granted interim stay of further proceedings until further orders.

71.

Learned counsel for the Bar Council of India further

submitted that since clause 28 was struck down by the Hon'ble Punjab and Haryana High Court, the General Council of Bar Council of India constituted a One Man Committee under the Chairmanship of the CoChairman of Bar Council of India, to examine and submit a report to the Council.

One Man Committee's report was placed before the General

Council of India, which consists of 19 elected members and two ex-officio members. After due deliberation, the General Council of India considered and accepted the report of the One Man Committee and accordingly, necessary resolution was also passed. Subsequently, clause 28 restricting the age on admission to law degree courses was withdrawn.

72.

Learned counsel for the Bar Council of India further

submitted that when rule itself has been struck down by the Punjab and

68

Haryana High Court and the procedure for making amendment does not arise. According to him, even before it was discussed by the General Council, the rule was struck down by the Punjab and Haryana High Court.

73.

He further submitted that Bar Council of India has no

intention to circumvent the orders passed by this Court in M.Santhosh Antony Vareed vs. Registrar, Tamil Nadu Dr.Ambedkar Law University, reported in 2009 (8) MLJ 1677. Decision to withdraw clause 28 of the Legal Education Rules, was taken considering the fact that the rule was struck down by the Punjab and Haryana High Court and that the Hon'ble Supreme Court also did not grant any interim order in the petition filed challenging the same.

According to him, even before the report was

submitted, the rule itself was struck off from the Statute Book.

74.

Learned counsel for Bar Council of India further submitted

that the Hon'ble Division Bench of Punjab and Haryana High Court, Chandigarh, vide order, dated 20.10.2011 in CWP.No.20966 of 2010 and connected petitions, declared clause 28 of Schedule III appended to the Rules of Legal Education, 2008 as ultra vires. He further submitted that

69

it is true that the Bar Council of India adopted clause 28 for admitting students to law degree course and also defended the same before various courts. However, by virtue of the interim orders, more than 1,00,000 persons have enrolled and taking note of the prevailing situation across the country and as the provision was struck down, there was a need for the General Council of the Bar Council of India to go into the issue and that the General Council of Bar Council of India comprising of 19 elected members and two ex-officio members, have deliberated and accepted the One Man Committee's report and in order to maintain uniformity, the Bar Council of India has also withdrawn the cases pending in the Hon'ble Supreme Court.

75.

He also submitted that when the Hon'ble Supreme Court

permitted withdrawal of the cases pending on the issue, Bar Council of India has to maintain uniformity in the matter of prescribing age for admission to law degree courses. According to him, the General Council of the Bar Council of India is supreme. Therefore, its decision cannot be questioned. He submitted that the decision of the Bar Council of India, withdrawing clause 28 from the Legal Education Rules cannot be said to

70

be without competence and violative of Article 14 of the Constitution of India. 76.

He also submitted that the doctrine of Wednesbury's

principles has to be applied to the facts of this case, to test the resolution and the notification. He also submitted that after 2013, much water has flown in the matter of admission of students to law degree courses across the country, by virtue of the interim orders and therefore, the writ petition is liable to be dismissed on the ground of delay and laches. Heard the learned counsel for the parties and perused the materials available on record.

77.

Before adverting to the rival contentions, this Court deems it

fit to extract few provisions from the Advocates Act, 1961 and the Bar Council of India Rules.

78.

The Advocates Act, 1961, has come into force on 19.05.1961

with the following Statement of Objects and Reasons:The Bill seeks to implement the recommendations of the All-India Bar Committee made in 1953, after taking into

71

account the recommendations of the Law Commission on the subject of Reform of Judicial Administration insofar as the recommendations relate to the Bar and to legal education. The main features of the Bill are,--(1) the establishment of an All-India Bar Council and a common poll of advocates, and advocate on the common roll having a right to practise in any part of the country and in any Court, including the Supreme Court; (2) the integration of the bar into a single class of legal practitioners known as advocates; (3) the prescription of a uniform qualification for the admission of persons to be advocates; (4) the division of advocates into senior advocates and other advocates based on merit; (5) the creation of autonomous Bar Councils, one for the whole of India and one for each State.

79.

As per Section 4 of the Advocates Act, 1961, there shall be

Bar Council of India for the territories to which the Act extends. Functions of the Bar Council of India as per Section 7(1)(h) of the Act, is 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. As per Section 7(m), of the Act,

72

Bar Council of India has to do all other things necessary for discharging the aforesaid functions.

80.

As per Section 10(2)(b) of the Act, a legal education

committee consisting of ten members, of whom five shall be persons elected by the Council from amongst its members and five shall be persons co-opted by the Council who are not members thereof. As per Section 10-A(4) of the Act, every Bar Council and every committee thereof except the disciplinary committees shall observe such rules of procedure in regard to the transaction of business at their meetings as may be prescribed.

As

per

Section

10-A(3)

of

the

Act,

the

committees other than disciplinary committees constituted by the Bar Councils shall meet at the headquarters of the respective Bar Councils.

81.

Section 15 of the Act empowers the Bar Council to frame

rules to carry out the purposes of Chapter II in which, Section 7(1)(h) figures. As per Section 49(1)(af) of the Act, the Bar Council of India may make rules for discharging its functions under the Act, and in particular, such rules may prescribe the minimum qualifications required for

73

admission to a course of degree in law in any recognised University and as per Section 49(1)(d) of the Act, the Bar Council of India may prescribe the standards of legal education to be observed by Universities in India and the inspection of Universities for that purpose.

82.

As stated supra, the very purpose of enactment of Advocates

Act, 1961, is to implement the recommendations of All India Bar Committee made in 1953, after taking into account the recommendations of the Law Commission on the subject of Reform of Judicial Administration in so far as the recommendations relate to the Bar and to legal education.

83.

The Bar Council of India Rules have been framed in exercise

of its rule making powers under the Advocates Act, 1961.

Rules are

divided into parts and each part has different chapters. As per clause 2(h) of Part I, rules means the rules made by the Council . Chapter III in Part II deals with Constitution, Functions and Procedure of Committees of the Bar Council of India. As per rule 1 of Chapter III, the the Council may appoint from amongst its members, one or more committees as it may

74

deem necessary, in addition to those specified in the Act and delegate such powers, duties and functions to such committees as it deems fit.

84.

Rule 4 of Chapter III, deals with constitution of Legal

Education Committee. As per rule 8 Chapter III, Part II, Legal Education Committee shall have the following powers and duties:(a) to make its recommendations to the Council for laying down the standards of legal education for the Universities; (b) to visit and inspect Universities and report the results to the Council; (c) to recommend to the Council the conditions, if any, subject to which foreign qualifications in law obtained by persons other than citizens of India may be recognised for admission as Advocates under the Act; (d)(i) to recommend to the Council for recognition of any degree in law of any University in the territory of India under Section 24(1)(c)(iii) of the Act and (ii)

to

recommend

the

discontinuance

of

any

recognition already made by the Council.

85.

Part IV of the Bar Council of India Rules deals with the rules

of Legal Education and it deals with rules on standards of legal education

75

and recognition of degrees in law, for the purpose of enrollment, as advocate, and inspection of Universities for recognising its degree in law, under Section 7(1)(h) and (i), 24(1)(c)(iii) and (iiia), 49(1)(af), (ag) and (d) of the Advocates Act, 1961, made by the Bar Council of India, in consultation with Universities and State Bar Councils.

86.

Rule 2(xvi) of Chapter I to Part IV, defines what ''Legal

Education Committee or LEC'' means, the Legal Education Committee constituted by the Bar Council of India under the Act, composed of five members of the Bar Council of India nominated by the Bar Council of India and five co-opted members comprising the Chairman who has to be a former Judge of the Supreme Court of India, a sitting Hon'ble Chief Justice of a High Court, distinguished Professor of Law, the Law Secretary and the UGC Chairman. The Committee may also have some permanent invitees proposed by the Bar Council of India.

87.

As per rule 2(xxi), “prescribed” means prescribed under

these rules. As per rule 2(xxv), “Rules” means on “Rules of Legal Education.” Chapter II of Part IV deals with standards of professional legal

76

education.

It speaks about the duration of the course eligibility for

admission, prohibition to register for two regular course of study, minimum marks in qualifying examination for admission, standard of courses, process and manner of running integrated course, semester system, minimum infrastructure, end semester test and prohibition against lateral entry and exit etc.

88.

Reading of the provisions makes it clear that Legal Education

Committee is empowered to deal with the standards of legal education to be maintained in colleges and Universities. Chapter III of Part IV deals with Inspection, Recognition and Accreditation of Centres for Legal Education Universities. Legal Education Committee has powers to inspect with colleges and Universities and make recommendations.

89.

Chapter VI of Part IV deals with Miscellaneous Provisions. As

per rule 43 of Chapter VI, the Legal Education Committee of the Bar Council of India shall be the dispute resolution body for all disputes relating to legal education, which shall follow a procedure ensuring natural justice for such dispute resolution as is determined by it.

77

90.

Rule 45 of the said Chapter states that any resolution passed

earlier, by the Bar Council of India/Legal Education Committee inconsistent with these rules shall not bind the Bar Council of India and all other bodies constituted in pursuance of the Advocates Act, 1961 after these rules coming into force.

91.

One of the contentions raised by the learned counsel

appearing for the petitioner is that when there is a dispute regarding the prescription of upper age limit for admission to law degree courses across the country by virtue of various orders passed by the High Courts, Legal Education Committee of the Bar Council of India is the only body empowered to resolve the dispute. Contentions raised by the petitioner is also to the effect that as per rule 47 of Chapter VI of Part IV, any amendment proposed by Bar Council of India in the rules shall be carried through consultation with the Universities and the State Bar Councils by way of circulation of the proposal to the Universities and the State Bar Councils for the written submission within the scheduled notified fate and after consideration of such written submission on merit.

The Legal

78

Education Committee/Bar Council of India shall on consideration of the representation finalise the said amendments, which shall come into force by way of notification in the website. The Bar Council of India shall also send the hard copy of notification to the Universities. Provided that any provision in the Schedule may be amended by the Bar Council of India on the recommendation of the Legal Education Committee and the same shall also be notified in the website of the BCI for enforcing the provision.

92.

A combined reading of the rules relating to the constitution

of Legal Education Committee, its functions under rule 8 to Chapter III of the Bar Council of India Rules makes it clear that Rules of Legal Education, 2008, itself were framed by the Bar Council of India, in consultation with the Universities and the State Bar Councils and as per rule 2(xxv), “Rules” means on “Rules of Legal Education”.

93.

On the role and functions of the Legal Education Committee,

we deem it fit to consider the report of the 184 Law Commission Report, on the Legal Education and Professional Training and the proposals for

79

amendments to the Advocates Act, 1961 and the University Grants Commission Act, 1956, December 2002.

The Hon'ble Mr.Justice

M.Jegannadha Rao, Chairman, Law Commission of India, New Delhi, in his report, dated 20.12.2002, has stated that the Bar Council of India (BCI), under Section 7(1)(h) of the Advocates Act, 1961, is empowered to promote legal education and lay down the 'standards' of such education in consultation with the Universities imparting such education. The University Grants Commission under Section 2(f) of the University Grants Commission Act, 1956 (UGC Act), is also having power to exercise control over the Universities and affiliated colleges for prescribing standards of education. The BCI may prescribe standards of legal education in consultation with the Universities. But in practice, it is not possible for the BCI, to consult each and every University and there is no manner prescribed in the Advocates Act, 1961, for rendering effective consultation in this regard.

Therefore, in this

report, the Commission has proposed that the University Grants Commission

should

constitute

its

'Legal

Education

Committee'

consisting of various specified faculty members. The Commission has recommended that the UGC Act, 1956, be amended by providing a

80

separate provision for constituting a 'Legal Education Committee' of the UGC.

It has also recommended that the UGC shall nominate three

members out of its Legal Education Committee, for the purposes of the 'Legal Education Committee of the BCI. It has proposed that, the Legal Education Committee of the BCI should also have one retired Judge of a High Court to be nominated by the Chief Justice of India. Accordingly,

it has recommended to amend section 10(2) of the

Advocates Act, 1961. The Legal Education Committee of the BCI should consult the Legal Education Committee of the UGC. It will have to fulfil the requirements of specified consultation process. The procedure for consultation is provided in the proposed section 10AA of the Advocates Act, 1961. Further, it has also recommended to elaborate the expression 'standards of legal education' in the Act by amendment of Section 7(1)(h) of the Advocates Act.

94.

Chapter IV of the report deals with UGC Committee on Legal

Education and the consultation process. (i)First stage of consultation should be with the State Bar Councils under sec.7(1)(h), as at present: 4.1.It will be seen that sec.7(1)(h) presently requires

81

consultation between the Bar Council of India and Universities and the State Bar Councils.

It is not proposed to make any

change in regard to consultation with the State Bar Councils. But, the consultation with Universities, i.e. with the proposed UGC Committee of academicians under sec.7(1)(h) must be effective consultation.

Obviously, it will be

convenient if the Legal Education Committee of the Bar Council of India first consults the State Bar Councils and the decisions arrived at as a result of the said decisions are sent to the UGC Committee on Legal Education for its views. The proposed amendment would be that the Bar Council of India will, through its Legal Education Committee, consult the State Bar Councils and after receiving their responses, will finalise the proposals which have to be sent to the Legal Education Committee of the UGC, as stated in this chapter: (ii)Second stage of consultation thereafter should be with the body nominated by UGC, as now proposed: 4.2.The consultation by the Bar Council of India with the UGC Committee on Legal Education will be after the consultation with the State Bar Councils and will have to be as follows: 4.3.As stated above, the Legal Education Committee of the Bar Council of India will consult the State Bar Councils and will have to provisionally finalise its proposals. This will be for the purpose of the further consultation with the UGC Committee on Legal Education. The said proposals will then

82

have to be sent by the Legal Education Committee or the Bar Council of India to the UGC Committee on Legal Education. That Committee will have the benefit of the views of the three academicians who are also in the Bar Council of India's Legal Education Committee and once the views of the UGC Committee are finalized, the decision of the UGC Committee will have to come back to the Bar Council of India's Legal Education Committee for discussion. Once again the three academician members can explain the views of the UGC Legal Education Committee

to the Bar Council of India's Legal

Education Committee. The two members from the Judiciary will also consider these views. Once the Bar Council Legal Education Committee considers these views, a collective decision has to be taken in the said Committee by all the ten members, including the Chairman (the retired Judge of the Supreme Court. In the new scenario, it is expected that the BCI Legal Education Committee and the UGC Legal Education Committee will give due and proper consideration to each other's views and arrive at a consensus. Of course, in the absence of a consensus, the majority view of the Legal Education Committee of the Bar Council will have to prevail. It is expected that at such a meeting, all the members and, in particular, the retired/sitting Judge of the High Court, will invariably, be present to help in the emergence of a satisfactory solution to any problem arising out of differences between the BCI Committee and the UGC Committee.

83

4.4.In certain situations, the Faculty may like to initiate and place some suggestions before the Bar Council of India. There must, therefore, be a separate procedure whereby the UGC Committee on Legal Education may initiate and send its suggestions to the Legal Education Committee of the Bar Council of India. In that event, the latter Committee shall first consult the State Bar Councils and then after arriving at a provisional view, refer the same to the Legal Education Committee of the UGC. The said Committee will give its final views and forward the same to the Legal Education Committee of the Bar Council of India. 4.5.The second aspect which the Bar Council has to take care of is that whenever a new curriculum is introduced – sufficient advance notice must be given to the law schools so that they can take steps to conform to the prescriptions. Let us assume that new subjects in intellectual property or cyber law or environmental law are proposed to be introduced. It may be noted that all the 460 law schools may not immediately be able to get 460 law teachers in each of these subjects who are duly qualified and who can take up these classes.

There may be

other difficulties like non-availability of standard books which can meet the requirements of students.

There have been

serious complaints from managements and faculty that some of the Bar Council's directive tend to be arbitrary. These reactions of the law schools cannot be treated as resistance or disobedience.

The practical difficulties in the way of law

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schools must also be taken into account. 4.6.For example, in the recent curriculum which has been circulated by the Bar Council of India, there are quite a good number of mattes which perhaps require a second look. The manner in which some important subjects have been put in the list of optional subjects and the manner in which two subjects which have not much of connection, have been joined together in one paper, appears to require correction. In a number of conferences and articles published by the Faculty, these anomalies have been pointed out. It appears to the Commission that there is considerable force in the view of the Faculty that effective consultation and greater interaction with the Faculty would have eliminated such anomalies.

This view was also

expressed at the Conference on 12.8.2002, of Law Professors organized by the National Law School of India University. Several articles have been published by experienced Professors in the volume published after the All India Conference of Faculty at the Delhi University in Jan.1999 entitled “Legal Education

in

India

21st

in

Century,

Problems

and

Perspectives”edited by Prof.A.K.Kaul and Prof.V.K.Ahuja. The suggestions of the Faculty require serious consideration. have

already

referred

to

Prof.Gurdeep

Singh's

We

article

“Revamping Profession Legal Education: Some observations on the LL.B Curriculum Revised by the Bar Council of India”and we feel that it will be extremely useful to read the said article. 4.7.It must be noted that standards of legal education

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relate to various aspects of legal education. They are known as the Bar as well as to the Faculty. Hence, they must be arrived after a thorough study and after an effective interaction between the Bar Council and the Faculty. Bar Councillors and Judges and faculty members of the Legal Education Committee must make an in-depth study of the subject of 'Legal Education' which is a specialized branch by itself. It is not sufficient either for the Bar or Faculty to have a general or vague idea about Legal Education. There is voluminous literature both Indian and foreign on the subject.

If one reads the Report of the

Curriculum Development Centre of the UGC 1988-1990, one will notice that it is very elaborate and consists of various aspects of Legal Education and runs into 800 pages and the subsequent Report of 2001 consists of 500 pages. There are several earlier reports (See also the articles in the Journal on Legal Education available in the Indian Law Institute). The recent curriculum prepared in 2001 by the National Law School University, Bangalore is said to be on the basis of the Mac Crate Report and Harvard models.

Of course, whatever is adopted must suit

Indian conditions. New courses are necessary in the light of liberalization, privatization and globalisation. The standards of legal education concern the entry to the college, the curriculum, as also the method of examination at the time of entering the college and leaving it or entering the profession and the qualification of teachers etc.

There must be full

coordination between the Bar Council and the Faculty on these

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matters. 4.8.There is one other aspect here which concerns the implementation of the recommendations of the Legal Education Committee of the Bar Council of India by the Bar Council of India.

The earlier Working Paper of the Law Commission

suggested that the Bar Council of India should accept and act in accordance with the decision of the Legal Education Committee of the Bar Council of India. It is very gratifying to note that in the letter of the Bar Council of India dated 3.8.2000, the Bar Council of India has agreed to implement the recommendation of

its

Legal

Education

Committee

without

raising

any

objections. In the said letter dated 3.8.2000, the Bar Council of India has further explained the various matters in regard to which the Legal Education Committee could give its views. This is a very happy augury and obviates the introduction of any provision like sec.20 of the Medical Council Act, 1956 which requires that in the event of any difference between the committee of the Medical Council and the Medical Council of India, the matter will be referred to the Central Government. The proposal of the Bar Council of India in its letter dated 3.8.2000 is that sec.7(1)(h) should read as follows: “to lay down standards of professional legal education in accordance with the recommendations of the Legal Education Committee of the Bar Council of India, which, inter alia, includes curriculum, teaching methods, examination, admission of students, number of teachers, location and infrastructure

87

requirements, and management in consultation with....” 4.9.There

can

be no

objection

to

this

proposal.

Therefore, the views of the Legal Education Committee of the Bar Council are to be implemented by the Bar Council of India.--without demur.

95.

While considering the 14th report of the Law Commission

(1958) presided over by Shri M.C. Setalvad, Hon'ble Mr.Justice M.Jegannadha Rao, Chairman, Law Commission of India, New Delhi, in his report dated 20.12.2002, has extracted paragraph 54 of the abovesaid 14th report as hereunder:“We have already seen how in England, professional legal education and the admission to the profession are controlled by a body consisting exclusively of professional men. There is no reason why a similar control and regulation should not be vested in the profession in India. Co-ordination between the bodies regulating professional training and the Universities with a view to ensuring minimal standards can be achieved in the manner indicated above.

In our view the Legal Education

Committee of the All India Bar Council may be empowered to keep itself in touch with the standards of legal education imparted at the various Universities by visits and inspection as in the case of the medical and dental professions or as is done by the American Bar Association in the case of the

88

American Law Schools. If the Council or its Committee is of the view that the standards prescribed by a particular University in legal education are not adequate or that institutions established by it or affiliated to it for imparting legal education are not well equipped or properly run, it may decide to refuse admission of the

graduates

of

that

University,

to

the

professional

examination till the University has taken steps to reach the minimum standards.”

96.

In M.Santhosh Antony Vareed vs. The Registrar, Tamil

Nadu Dr.Ambedkar Law University, reported in 2009 (8) MLJ 1677, the petitioner therein has challenged the column 2(iii)

of the prospectus

issued for the three year B.L degree course 2009-2010 by the respondent and quash the same, and consequently, prayed for a direction to the respondent therein to accept the petitioner's application for three year B.L course admission, relaxing the instructions specified in column 2(iii) and to condone the excess 8 days.

As per column 2(iii) of the

notification/instruction, a candidate should not have completed 30 years of age, as on 1st June 2009.

After considering Section 7(1)(h) of the

Advocates' Act, 1961, dealing with the functions of the Bar Council of India, Section 49(1)(af) of the Bar Council of India, to make rules

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regarding promotion of legal education and to lay down the standards of such education in consultation with the Universities in India, imparting such

education and the State Bar Councils

and the minimum

qualifications required for admission to a course of degree in law in any recognised University, standards of legal education to be observed by the University in India and inspection of Universities for that purpose, a learned single Judge has observed that the above provision would undoubtedly prove that the Bar Council of India has competence and jurisdiction to lay down the norms regarding legal education. Taking note of the judgment in R.K.Anand vs. Registrar, Delhi High Court, reported in 2009 (6) SCJ 465, the learned single Judge has further observed that the Apex Court has taken note of the responsibility of the Bar Council of India in administration of justice. While refusing to quash column 2(iii) of the notification, the learned Judge has made some suggestions.

97.

In Bar Council of India vs. Bonnie FOI Law College and

others (SLP.(C)No.22337 of 2008), the matter before the Hon'ble Apex Court was relating to affiliation of the said college. The Hon'ble Supreme Court sought to address the issue of contemporary importance. Earlier

90

vide order, dated 29.06.2009, the Hon'ble Apex Court noted with concern the diminishing standards of professional legal education provided at various Law Colleges across the country.

The Hon'ble Apex Court

considered several issues and constituted a three member committee, to examine the issues relating to affiliation and recognition of law colleges. Portion of the Supreme Court's order constituting three member committee is as follows:“The entire future of the legal profession depends on ultimate product of these Law Colleges.

Looking to the

gravity and seriousness of the matter, we request the learned

Solicitor

General

and

President

of

the

Bar

Association and the Chairman, Bar Council of India to look into the matter seriously and submit a report to this Court as expeditiously as possible.

They would be at liberty to

associate experts or any other person which they deem it appropriate.”

98.

Following the said order, a committee has been constituted

comprising of Shri Gopal Subramanium, the then Solicitor General of India as its Chairman and Shri M.N.Krishnamani, the then President, Supreme Court Bar Association and Shri S.N.P.Sinha, the then Chairman, Bar Council of India as its members, to undertake a holistic and

91

comprehensive review of the existing literature, on the reforms of professional legal education in India. The Committee has also sought for the views of the legal luminaries and experts, for the purpose of reforming professional legal education in India.

99.

A draft copy of the report has been submitted to the Hon'ble

Supreme Court on 06.10.2009. Report has been directed to be placed before the Bar Council of India.

The Report has been unanimously

accepted by the Bar Council of India, subject to one amendment i.e. it was the suggestion of the Bar Council of India that all law schools and colleges

should

be

mandatorily

required

to

establish

legal

aid

clinics/centres to provide inexpensive and expeditious legal advice to the needy sections of our society. This suggestion of the Bar Council of India has been incorporated in the report of the three member committee dated 06.10.2009. The Three Member Committee has opined as follows: “In the year 2002, the Law Commission of India (hereinafter referred to as 'LCI') undertook a comprehensive suo motu review of the structure and regulation of the professional legal education system in India. The report prepared by LCI,

92

titled as the “184” Report on the Legal Education & Professional Training and Proposals for Amendments to the Advocates Act, 1961 and the University Grants Commission Act, 1956” analyses in detail the conjoint responsibility of BCI and UGC towards the regulation of professional legal education. I.LCI in its Report analyzes at length the quality of consultation envisaged between BCI and the Universities under Section 7(1)(h) of the Advocates Act, 1961. The Report notes that the responsibility of BCI in ensuring “... standards of legal education...” and that of UGC in ensuring '... standards of education...' are, in fact, not in conflict with each other, but have to be harmoniously construed. Section 7(1)(h), in providing for consultation between BCI

and UGC, advance

the proposition that both the statutory bodies share common goals vis-a-vis regulation of professional legal education. The Report stipulates that the requirement of Section 7(1)(f) is, in fact, 'effective consultation' between BCI and the Universities, thereby increasing the involvement of the members of academia in regulating legal education. There are, obviously practical and logistical difficulties in BCI consulting

the

huge

number

of

Universities

institutions imparting legal education.

and

other

The LCI Report,

therefore, recommends that instead of requiring 'effective consultation' with each University, the Advocates Act should instead be suitably amended to enable BCI to consult a representative body, which body, in turn, should be

93

constituted by UGC, thus ensuring that both BCI and UGC remain equal partners in regulating legal education. ii.LCI in its Report has also considered the composition of the BCI Legal Education Committee provided for under Section 10 of the Advocates Act, 1961. Regarding the concerns raised by the academia over their perceived under-representation in the BCI Legal Education Committee , LCI rightly notes that the roles of the Bar, Bench and the academia vis-a-vis the regulation of legal education should be balanced. The Report rejects the proposition that the Bar Council's role should be limited to regulating entry into the legal profession and maintenance of professional standards. LCI recommends that the BCI Legal Education Committee should consist of 5 members elected from amongst the BCI members, one retired Judge of the Supreme Court, one retired Chief Justice/Judge of a High Court and 3 active law teachers holding

the

ranks

of

Vice-

Chancellor/Director/Principal/Professor in a law college. The inclusion of the Attorney General for India as an ex-officio member is also recommended. iii.To represent the academia, the Report recommends the constitution of a UGC Committee on Legal Education, comprising teachers

a total 10 members, with 6 members being law in

office

and

2

members

being

Vice-

Chancellors/Directors of statutory law Universities. The Report envisages 3 faculty members to be common to both the BCI

94

Legal Education Committee and the UGC Committee on Legal Education, in order to ensure better coordination between the BCI and the UGC Committees. iv.LCI envisages 'effective consultation' between BCI and the Universities as a three-tier process: the first consultation on a proposal regarding legal education would be between BCI, through its Legal Education Committee, and the State Bar Councils, after which the proposals would be considered by the UGC Committee on Legal Education. As the final stage of the consultation, the proposals would once again be deliberated by the BCI Legal Education Committee. v.LCI also contemplates that the proposals of the BCI Legal Education Committee would be binding on the Bar Council, and would have to be implemented “without demur”.

It

is

noteworthy

that

consistent

with

the

recommendations of the 14th Law Commission Report, the 184th Report also accords primacy to BCI with respect to regulation of professional legal education. vi.With respect to inspection and recognition of law colleges by BCI, LCI recommends that it is imperative to require prior permission from BCI for imparting legal education.

LCI

rightly observes that the absence of such a requirement has lead to a host of law colleges being granted permission to offer degree in law, although such institutions were ill-equipped to offer or impart instruction.

It is for this purpose that LCI

strenuously recommends the prior permission system, as well as

95

the provision for withdrawal of the permission by BCI in case at a subsequent stage the Bar Council finds that the necessary standards are not being maintained.

LCI also recommends

imparting of instruction by a law college without the prior permission of BCI to be made a punishable offence under the provisions of the Advocates Act. vii.LCI in its Report also records its dissatisfaction with the inspections carried out by BCI for the purpose of granting permission or recognition to law colleges. It is noted that in many cases, the inspection undertaken was merely perfunctory. Also contemplated in the Report is the possible conflict of opinion between BCI and UGC in case of simultaneous inspections undertaken by both the statutory bodies.

LCI,

therefore, recommends that the BCI Rules governing inspections be suitably amended to provide that at least one academician from a State different from the one where the law college in question is located also forms part of the inspection team. Further, the Report also recommends, in case of a conflict in the inspection reports prepared by BCI and UGC, that a further inspection be carried out by a Task Force constituted for that purpose, of which a judicial officer must necessarily be a member. Another important aspect considered by LCI in its 184th Report is that concerning the introduction of an examination for the purposes of admitting law graduates to the Bar. Indeed, the requirement of a bar examination for the purpose of ensuring

96

quality in the legal profession has been a matter of inveterate debate in the legal community and has been analyzed separately in the present Report.”

100. The three member committee's report has also suggested that Chapter IV of 2008 of the Bar Council of India Rules, be strictly enforced. Part IV of the Bar Council of India Rules, deals with the rules of Legal Education, which states that rules on standards of legal education and recognition of degrees in law, for the purpose of enrolment, as advocate, and inspection of Universities for recognizing its degree in law, under Section 7(1)(h) and (i), 24(1)(c)(iii) and (iiia), 49(1)(af), (ag) and (d) of the Advocates Act, 1961, made by the Bar Council of India, in consultation with Universities and State Bar Councils.

101. On 24.10.2009, there was an emergent meeting of the Bar Council of India cum Legal Education Committee presided over by Hon'ble Mr.Justice A.P.Misra, a Retired Judge of the Hon'ble Supreme Court of India and 14 others.

Item No.97/2009 of Agenda was to consider the

report submitted by the three member committee to the Hon'ble Supreme Court in the matter of Bonnie Foi Law College.

The Bar Council has

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considered the report of the three member committee submitted to the Hon'ble Supreme Court of India.

While considering the report of the

three member committee, Hon'ble Mr.Justice A.P.Misra, the Bar Council of India has suggested that Legal Aid Centres should be created in all the law colleges. After discussion, the following resolution has been passed. “Resolved that the report of the 3 Member Committee submitted to the Hon'ble Supreme Court of India be and is hereby approved with the following addition: that a Legal Aid Centre be created in all colleges and that one lecturer should be incharge of the said Legal Aid Centre and the final year students should be trained in that Centre.”

102. Thus from the above, it could be seen that the Three Member Committee's report has also reiterated that as per Section 7(1)(h) of the Advocates Act, effective consultation between the Bar Council of India, the State Bar Councils and the Universities in India, is required and increase in the involvement of the members of the Academicia of Legal Education, has been taken note of, by the Bar Council of India while accepting the report of the Three Member Committee.

103. Being aggrieved by the decision, M.Santhosh Antony Vareed

98

has filed SLP.(Civil)No.13846 of 2010, against Bar Council of India. Before the Apex Court, Bar Council of India in its counter affidavit has stated as follows:“5.That it is respectfully submitted that as observed by this Hon'ble Court in 2007 (2) SCC 202 that having regard to the Rules under Sections 7(1)(h)(i)(24)(11)(c)(iii)(iiia)m 49(1)(af), (ag) and (d) of the Advocates Act, it is clear that though the Bar Council of India may not have been entrusted with direct control of the course of studies in law, the power of inspection, the power of recognition of degrees and power to deny enrollment to new degree holders, unless the University from which they pass out is recognised by the Bar Council of India. It may not be correct to say that the Bar Council of India is totally unconcerned with the legal education, as the apex professional body, the Bar Council of India is concerned with the standards of the legal education and the equipment of those who seek entry into the legal profession. 6.That it is respectfully submitted that the Bar Council of India is constituted under Section 4 of the Advocates Act. It consists of the Attorney General of India, the Solicitor General of India, both in their ex officio capacities and one member elected by each State Bar Council from amongst its members. It is a body corporate.

The functions assigned to it are

enumerated in Section 7 of the Act. The functions relevant for our purpose are contained in Section 7(1)(h) and Section

99

7(1)(l). They read: “7(1)(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; (l) to recognize universities whose degree in law shall be a qualification enrollment as an advocate and for that purpose to visit and inspect universities or cause the State Bar Councils to visit and inspect universities in accordance with such directions as it may give in this behalf.” 7.That it is respectfully submitted that Rules framed by the Bar Council of India in exercise of its rule-making power. After consultation of with the Universities imparting legal education and State Bar Councils framed Rules under section 7(1)(h)(l) 24(1)(c) which came into effect w.e.f academic year 2008-2009. The Chapter II of the Rules deals with the “Standards of professional Legal Education” prescribing the eligibility for admission in 3 year and 5 year law course and also prescribing minimum marks for qualifying examination, minimum infrastructure which is to be maintained by the Universities / Institutions approved by the Bar Council of India.

Chapter III deals with the inspection, recognition,

accreditation of the Universities / Institution.”

104. Placing reliance on a decision in Bar Council of India vs.

100

Aparna Basu Mallick, reported in AIR 1994 SC 1334 = 1994 (2) SCC 102, the Bar Council of India, in its counter affidavit, has further contended that the Hon'ble Apex Court was pleased to hold that Section 49(1)(d) of the Advocates Act, empowers the Bar Council of India, to make rules, which may prescribe standards of legal education to be observed by Universities in India and the inspection of Universities for that purpose.

While

justifying the prescription of upper age for admission, reference has also been made to the decision in Preeti Srivastava (Dr) vs. State of Madhyar Pradesh, reported in 1999 (7) SCC 120, wherein the Apex Court held that regulation of admission has direct impact on the maintenance of standards of education and while considering the standards of education in any college or institution, the caliber of students who are admitted to that institution cannot be ignored.

105. In the counter affidavit, before the Hon'ble Apex Court, the Bar Council of India has also relied on a decision of the Apex Court in Union of India vs. Indian Council of Agriculture Research, reported in 2000 (1) SCC 750, wherein, it is held that Veterinary Council of India is competent and empowered to prescribe standards Veterinary

101

Education, which includes power to regulate admission to the course. The Bar Council of India has also stated that there is no provision in the rules, for condoning age limit. It is the stand of the Bar Council of India, in Santhosh Antony Vareed's case, before the Hon'ble Apex Court that any academic course requires age limit for getting admission.

Young

mind can be moulded whereas matured mind cannot be moulded very easily. Fixing of age limit for admission would bring uniformity among the students.

106. At paragraph 16 of the counter affidavit, the Bar Council of India, before the Hon'ble Apex Court in Sathosh Vareed's case, has further stated that the action and resolutions passed by the answering Council, neither violates Article 14 and 19(1)(g) of the Constitution of India, nor is ultra vires of the provisions of the Advocates Act, 1961 and they are in consonance with the provisions of the Advocates Act, 1961.

107. Placing reliance on the decision in Om Kumar vs. Union of India, reported in 201 (2) SCC 386, in the counter affidavit, before the Hon'ble Apex Court, Bar Council of India has further stated that the

102

impugned clause 28 framed by the Bar Council of India, is proportionate and not violative of Article 14 of the Constitution of India. Reference has also been made to the decision in Bar Council of India vs. Board of Management, Dayanand College of Law, reported in 2007 (2) SCC 202, wherein, the Apex Court held as follows: “Rule 17(1) stipulates that no college after the coming into force of the Rules shall impart instruction in a course of study in law for enrolment as an advocate unless its affiliation has been approved by the Bar Council of India. Thus, though the Bar Council of India may not have been entrusted with direct control of legal education in the sense in which the same is entrusted to a University, still, the Bar Council of India retains adequate power to control the course of studies in law, the power of inspection, the power of recognition of degrees and the power to deny enrolment to law degree holders, unless the University from which they pass out is recognized by the Bar Council of India.”

108. Before the Hon'ble Apex Court, in M.Santhosh Antony Vareed vs. The Registrar, Tamil Nadu Dr.Ambedkar Law University, reported in 2009 (8) MLJ 1677, the Bar Council of India has further stated that the appellant was wrong in contending that the rules are

103

ultra vires

of the rule making power of the Bar Council of India

available to it, under the provisions of the Act. The Bar Council of India has further averred that the Madras High Court in M.Santhosh Antony Vareed's case was right in holding that Section 49 of the Advocates Act, 1961, empowers the Bar Council of India for making rules for discharging its functions under this Act, including the standards of legal education to be observed by the Universities in India and the inspection of Universities for that purpose. The Bar Council of India has also submitted that the rules were framed by the Bar Council of India, to promote standards of legal education and the entitlement of those who seek entry into the profession and as such to upgrade the quality of legal education, in consultation with the Universities in India, imparting such education and the State Bar Councils.

109. The Bar Council of India has further stated that the Legal Education Rules were framed in consultation with the Universities, and the State Bar Councils and that the same were challenged on the presumption of vacancies which may occur in future. It is the contention of the Bar Council of India that rules have been framed to strengthen the

104

standards of legal education in India.

It is also the stand of the Bar

Council of India that by framing rules of legal education, the Bar Council of India not is not causing unreasonable restriction, but is only strengthening the standards of legal education in the country. 110. As per the counter affidavit before the Hon'ble Apex Court, the then existing members of Legal Education Committee were a former Hon'ble Judge, Supreme Court of India, the Hon'ble Mr.Justice Madan Bhimrao Lokuar, Chief Justice of Andhra Pradesh, Prof.N.L.Mitra, former Vice-Chancelor of National Law School, Bangalore and Jodhpur, the Attorney General of India, The Solicitor General of India and five members of Bar Council of India. Legal Education Committee has been expanded by the Bar Council of India to include eminent Senior Advocates like Shri Ram Jethmalani, Shri Ashok Desai H, Shri K.K.Venugopal, Shri P.P.Rao, Shri Anil Divan, Shri Gopal Subramanium, Shri A.K.Ganguli, Shri O.P.Sharma, former Chairman Bar Council of India and Prof.(Dr.)Ranbir Singh, Vice-Chancellor, National Law University, Delhi and Hon'ble Mr.Justice Mukul Mudgal, former Chief Justice of Punjab and Haryana High Court and other legal luminaries.

105

111. Counter affidavit of the Bar Council of India in M.Santhosh Antony Vareed's case (SLP.(Civil)No.13846 of 2010) has been executed in September 2012 and filed in the Hon'ble Supreme Court. The Bar Council of India has specifically stated that the rules framed by the Bar Council of India were implemented by all the colleges/Universities in the country. Thus, before the Hon'ble Apex Court, when the correctness of the decision in M.Santhosh Antony Vareed's case was tested, the Bar Council of India has categorically admitted that the Rules of Legal Education, 2008, have been framed in consultation with the Universities and the State Bar Councils and adopted by all the colleges and Universities in the country.

112. Before the Hon'ble Apex Court in Santhosh Antony Vareed's case, the Registrar, Tamil Nadu Dr.Ambedkar Law University, in his counter affidavit filed in SLP.(Civil)No.13846 of 2010, has stated that meeting of the U.G. Board of Studies and the Board of Studies for the B.A., B.L., (Hons) Degree course held on 10.01.2009 and it was resolved to recommend to the Syndicate for the adoption of age on admission as prescribed in the Bar Council of India Rules, 2008 from the academic

106

year 2009-2010 recommended by its Legal Education Committee for implementation by the Universities imparting legal education.

The

resolution of the said Board of Studies was approved by the Syndicate in its 92nd meeting held on 21.01.2009.

The Government, in its Letter

No.10718/LS/2009, Law (LS) Department, dated 19.05.2009 has directed to adopt the age on admission for the Law Degree Courses as prescribed by the Bar Council of India and its University has also strictly followed the instructions given by the Government from time to time, since the University has been appointed as Nodal Agency of the Government for admission of candidates in 3/5 year Law Degree Courses.

113. Dr.Amebdkar University has categorically admitted in the counter affidavit that it has resolved to accept the recommendations of the Legal Education Committee for the implementation of Universities. At this juncture, it is pertinent to note that it was the recommendation of the Legal Education Committee, accepted by the Bar Council of India and lateron recommended by the Board of Studies of the University to adopt age on admission, as prescribed by the Bar Council of India. Thus, it is evident from the counter affidavit of the Registrar, Tamil Nadu

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Dr.Ambedkar Law University, Chennai that primarily, it was the Legal Education Committee of the Bar Council of India, who has recommended the age on admission, which was lateron accepted by the Bar Council of India and thus, the Rules of Legal Education, 2008, have been framed. 114. When the matter stood thus, one Mr.V.Ramesh, Advocate, Madurai Bench of the Madras High Court, has filed W.P(MD)No.10315 of 2013 for a Mandamus, directing the Chairman, Tamilnadu Bar Council, Chennai, to frame appropriate guidelines in the matter of enrollment of candidates from other States. One A.Muthukumar has also filed similar counter affidavit.

115. Impugned notification dated 28.09.2013 states that the Bar Council of India has nominated Mr.S.Prabakaran, Hon'ble Member of the Bar Council of India, to examine and submit a report to the Council regarding clause 28 of Schedule-III, Rule 11 of the Rules of Legal Education-2008 (age on admission to law colleges).

116. Reason assigned in the counter affidavit to the present writ petition is that there were various interim orders, suspending the

108

operation of clause 28 by the High Courts and in Ankit Bhardwaj vs. Bar Council of India, (W.P.No.12528 of 2011, dated 20.10.2011), the Punjab and Haryana High Court has held that clause 28 of Schedule-III appended to rules as beyond the legislative competence of the Bar Council of India and that there were other decisions from the Punjab and Haryana High Court and other Courts also.

117. Reading of the notification dated 28.09.2013 shows that the member has taken note of the dismissal of SLP No.13846 of 2010 against the decision in M.Santhosh Antony Vareed vs. The Registrar, Tamil Nadu Dr.Ambedkar Law University, reported in 2009 (8) MLJ 1677 and that the Hon'ble Supreme Court dismissed the SLP on 11.03.2013 in the following words. “Upon hearing the council, the court made the following order:- Dismissed.” The Member has taken note of the decision in Ankit Bhardwaj vs. Bar Council of India, (W.P.No.12528 of 2011, dated 20.10.2011) for arriving at a conclusion.

118. The Bar Council of India, in its counter affidavit to the

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present writ petition, has further submitted that One Man Committee has taken note of the other judgments of the Punjab and Haryana High Court and observed that the other professional courses such as B.Ed., C.A., C.S., and M.B.A., there is no upper age limit, for admission in professional courses. The Bar Council of India has further stated that the member has taken note of the fact that even in medical courses, some of the states do not have upper age limit. Restriction of age for admission violates the fundamental right, guaranteed in Article 19 of the Constitution of India.

119. Reading of the impugned notification further states that Bar Council of India is the competent authority to lay down standards of education and recognition of degree in law for admission as advocate. Section 7 of the Advocates Act lays down the functions of the Bar Council of India, which includes promotion of legal education and laying down the standards of such education in consultation with the Universities in India and State Bar Councils.

120. Sections 15 and 49 of the Advocates Act empowers the Bar

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Council of India to frame rules, for carrying out all functions. At this juncture, it is to be noticed that the One Man Committee itself has categorically recorded that as per Section 7 of the Advocates Act, promotion of legal education and laying down standards of such education has to be done in consultation with the Universities in India and the State Bar Councils. At the risk of repetition, Section 7(1)(h) of the Advocates Act, is reproduced hereunder:“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.”

121. Impugned Notification further reads that on 14.09.2008, the Bar Council of India passed a resolution No.110/2008 and formulated the rules.

The rules have been basically formulated to prescribe the

standards of legal education and recognition of degree in law for the purpose of enrollment as advocate and inspection of Universities for recognising its degree in law, under Section 7(1)(h) and (i), 24(c)(iii) and (iiia), 49(1)(af), (ag) and (d) of the Advocates Act.

122. One Man Committee has also considered paragraph 8 of the

111

judgment in Indian Council of Legal Aid and Advice and others vs. Bar Council of India and another, reported in 1995 (1) SCC 732, wherein, at paragraph 8, wherein, the Hon'ble Apex Court held as follows:-

“8. The newly added rule seeks to bar the entry of persons who have completed the age of 45 yews on the date of application for enrolment as an advocate from being enrolled as such by the concerned State Bar Council. While Section 24 of the Act prescribes the minimum age for enrolment as twentyone years complete, there is no provision in the Act which can be said to prescribe the maximum age for entry in to the profession. Since the Act is silent on this point the Bar Council of India was required to resort to its rule making power. The rules made by the Bar Council of India under Section 49(1)of the Act are in seven parts, each part having its own chapters. Part VI is entitled 'Rules Governing Advocates' and the said part has three chapters. Chapter I sets out the restrictions on senior advocates and is relatable to Section 16(3) and 49(1)(g) of the Act, Chapter II lays down the standards of professional conduct and etiquette and is relatable to Section 49(i) (c) read with the proviso thereto and Chapter III deals with 'conditions for right to practice' and is stated to be made in exercise of power under clause (ah) of sub-section (1) of Section 49 of the Act. That clause reads as under: "(ah) the conditions subject to which an advocate shall

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have the right to practise and the circumstances under which a person shall be deemed to practise as an advocate in a court. On the plain language of the said clause it seems clear to us that under the said provision the Bar Council of India can lay down the 'conditions' subject to which 'an advocate' shall have the right to practise These conditions which the Bar Council of India lay down are applicable, i.e., a person who has already been enrolled as an advocate by the concerned State Bar Council. The conditions which can be prescribed must apply at the post – enrolment stage since they are expected to relate to the right to practise. By the impugned rule, the entry of those who have completed 45 cars at the date

of

application

for

enrolment is sought to be barred. The rule clearly operates, at the pre-enrolment stage and cannot, therefore, receive the shelter of clauses (ah) of Section 49(1) of the Act. Under the said clause conditions applicable to an advocate touching his right to practise can be laid down, and if laid down he must exercise his right subject to those conditions.

But

the

language of the said clause does not permit laying down of conditions for entry into the profession. We have, therefore, no hesitation in coming to the conclusion that clause (ah) of Section (1) of the Act does not empower the Bar Council of India to frame a rule barring persons who have completed 45 years of age from enrolment as an advocate. The impugned rule is, therefore, ultra vires the said provision.”

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123. Thus, it could be deduced from the judgment in Indian Council of Legal Aid and Advice's case (cited supra), the Hon'ble Supreme Court of India has observed that Clause 2(ah) of Sub-Section 49 of the Advocate's Act, 1961, operates at the pre-enrolment stage. In the said case, the impugned proceedings was the resolution of the Bar Council of India, Resolution No.64/93 dated 22.08.1993, adding rule 9 in Chapter III of part VI of the Bar Council of India Rules, which was gazetted on 25.09.1993. The said newly added rule reads as under, "A person who has completed the age of 45 years on the date on which he submits his application for his enrollment as an advocate to the State Bar Council shall not be enrolled as an advocate". The same was challenged as inconsistent with Articles 14, 19(1)(g) and 21 of the Constitution and Section 24 of the Advocates Act, 1961.

124. Though before the Hon'ble Apex Court, the Bar Council of India argued that the upper age limit for enrolment has been fixed to save the legal profession from decay and deterioration, and further contended that the powers conferred under Section 15 of the Advocates

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Act, enables the Council to frame rules, the Hon'ble Apex Court, taking note of Section 24 of the said Act, observed that there is a provision for prescribing minimum age for enrollment as 21 years and that there was no provision in the Act, which can prescribe the maximum age entering into the profession. The Apex Court opined that as the Act is silent on the point, the Bar Council of India has resorted to its rule making power under Section 49(1). Section 49(i)(c) read with the proviso thereto and Chapter III deals with 'conditions for right to practice' which the Bar Council of India can lay down, i.e., a person who has already been enrolled as an advocate by the concerned State Bar Council and that the conditions which can be prescribed must apply at the post-enrolment stage. Thus, the Hon'ble Supreme Court held that the newly added rule cannot receive the shelter of clauses (ah) of Section 49(1) of the Act.

125. The Hon'ble Apex Court further held that the above conditions applicable to an advocate touching his right to practice can be laid down, and if laid down, he must exercise his right subject to those conditions. The Apex Court held that the language of the said clause does not permit laying down of cautions of entry, into the profession.

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Therefore, the Hon'ble Supreme Court held that it has no hesitation in coming to the conclusion that clause (ah) of Section (1) of the Act, does not empower the Bar Council of India to frame a rule barring persons who have completed 45 years of age from enrolment as an advocate. 126. The Hon'ble Apex Court further held that looking at from the point of view, as to whether the newly added rule could be saved under the provisions of the Advocates Act, 1961 and taking note of the fact that Section 24(1)(b) provides that the person who seeks enrolment as an advocate must have completed the age of twenty-one years and that the said Act nowhere provides the maximum age beyond which a person shall not be entitled to enrolment as an advocate nor does the Act make any specific provision empowering the Bar Council of India to frame such a rule and further observing that none of the functions under Section 7 specifically provides for laying down such a condition debarring persons of a certain age group from enrolment as advocates and also holding that the clause relied upon is couched in positive terms, namely, it says the rules may prescribe the class or category of persons who may be admitted to the legal profession and therefore,

the rule only specifies the

class or category of persons 'entitled to be enrolled' as advocates, but the

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rule does not give any indication that it can debar persons belonging to a certain age group from being enrolled as advocates.

The Hon'ble

Supreme Court ultimately held that where a provision is couched in a positive language and is in the nature of an enabling provision, there is no canon of construction which says that by necessary implication the rule making authority can make a provision disentitling admission or enrolment to the profession. Such a submission is difficult to countenance. Thus at paragraph 15, the Hon'ble Supreme Court struck down new rule 9 inserted in Chapter III as ultra vires of the Act and opposed to Article 14 of the Constitution and the State Bar Councils were directed not to implement the said rule.

127. From the reading of the entire judgment, it could be deduced that what was considered by the Hon'ble Apex Court is the competence of the Bar Council of India to frame a new rule 9 restricting entry into the profession, after completing the age of 45 years. Validity of the rule has been tested with reference to Section Sections 15, 24A, 49(1)(ag)and (ah) of the Advocates Act, 1961, which deals the functions of the Bar Council of India to promote legal education and to lay down

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standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils. With due respect, Indian Council of Legal Aid and Advice's case (cited supra), can be taken as a precedent to what was considered and decided. 128. In Ankit Bhardwaj vs. Bar Council of India, (W.P.No.12528 of 2011, dated 20.10.2011), the common question of law was whether clause 28 appended to the Rules of Legal Education, 2008, is ultra vires of the Act and the Constitution.

After considering paragraph 8 of the

judgment in Indian Council of Legal Aid and Advice and others vs. Bar Council of India and another, reported in 1995 (1) SCC 732, which relates to prescription of upper age limit for entry into the profession, at paragraphs 9 and 10, the Hon'ble Punjab and Haryana High Court held as follows:“The impugned clause 28 dealing with the age on admission occurring in Schedule-III appended to the rules have been framed under Section 7(1)(h) and (I) and 24(1)(c)(iii) of and (iiia), 49(1)(af), (ag), and (d) of the Advocates Act. Section 7 of the Advocates Act deals with the function of the Bar Council of India and Clause 7(1)(h) and (i) only deals with such functions of the Bar Council of India, which are aimed at promoting to legal education to to lay down standards of such

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education in consultation with the Universities in India imparting such education and to recognise the Universities whose degree in law shall be a qualification for enrollment as an advocate. Therefore, this clause would not arm the Bar Council of India to incorporate the provisions in the rules like clause 28 concerning the age on admission to LLB course. Likewise, Section 24(i)(c) deals with person who may be admitted as an Advocate on a State roll. It has got nothing to do with the age on admission and cannot be construed to have conferred power on the Bar Council of India to prescribe the maximum age for the purpose of admission to LLB five years course or LLC three years course. We are left to deal with Section m49(1)(af) and (ag) of the Advocates Act.

The aforesaid clause (af) deals with the

minimum qualification required for admission to a course of degree in law in any recognised University and clause (ag) deals with the class or category of the persons entitled to be enrolled as Advocate. Clause (d) of Section 49(i) of the Advocates Act deals with the standards of legal education to be observed by Universities in India and the inspection of Universities for that purpose. We are afraid that even this clause would not extend to grant competence to Bar Council of India to incorporate a provision concerning the maximum age for admission to LLB course.

The matter has been discussed in detail in Indian

Council of Legal Aid and Advice's case (supra) by Hon'ble the Supreme Court. It is also relevant to mention that a similar

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view was taken by the Division Bench of Madras High Court in the case of M.Radhakrishnan vs. The Secretary, the Bar Council of India, AIR 2007 Madras 108.

Therefore, we find that the

provisions of clause 28 of Schedule-III appended to the rules are beyond the legislative competence of the Bar Council of India. Clause 28 ultra vires the provisions of Sections 7(1)(h) and (I), 24(1)(c)(iii) and (iiia) or Section 49(1)(af), (ag) and (d) of the Advocates Act.

Even otherwise, the rule is arbitrary as it

introduces an invidious classification by dividing one class of student into two artificial and irrational classes by prescribing the maximum age for admission to law courses.”

129. Paragraph 9 of the judgment in Ankit Bhardwaj's case, has also been taken note of by the One Man Committee.

The One Man

Committee has further recorded as follows:“Some of the persons even after completed the age of more than 40 to 45 years completed the degree and enrolled in number of State Bar Council and many of the, appeared in the All India Bar Exam and obtained Certificate of Practice. In such a circumstances, lot of ambiguity in the above rule and striking down clause 28 of Schedule-III appended to the Rules of Legal Education (for brevity, 'the Rules'), framed by the Bar Council of India being ultra vires, unconstitutional and arbitrary and apart, the Clause-28 is total violation of not only fundamental rights

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but also violation of the principles of natural justice. In the larger interest in many of the States after due deliberations, the opinions has been formed, the Clause-28, Schedule-III, Rule 11 of the Rules of Legal Education-2008 is ultra vires, unconstitutional and against the principles of the natural justice.'' 130. The report of the One Man Committee, dated 28.07.2013 has been accepted by the Bar Council of India in its meeting held on 31.08.2013 and the same is extracted hereunder: “The Bar Council of India at its meeting held on 31st August 2013 passed the following resolution in regard to Clause 28 Schedule-III of Rule 11 of the Rules of Legal Education-2008:“Resolution No.200/2013 The office note seeking clarification as to whether, after withdrawal of Clause-28, Schedule III of rule 11 of the Rules, of Legal Education, 2008, the Universities/Colleges imparting Legal Education can take admission in Law Courses without age restriction in spite of pendency of SLPs/TP in the Hon'ble Aped Court, is considered by the Council. After consideration, the Council resolves to clarify that since Clause-28, Schedule III of rule 11 of the Rules of Legal Education, 2008, prescribing age restriction to take admission in law courses has been withdrawn, the colleges/universities imparting legal education are allowed to take admission in 5 year/3 year courses without any age restriction.

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The office is directed to notify the withdrawal of this clause in the Gazette of India immediately. Office is further directed to move an application before Hon'ble Supreme Court with a prayer to withdraw SLP as well as Transfer Petition filed by the Bar Council fo India in the matter of Clause-28, Schedule III of rule 11 of the Rules of Legal Education, 2008.” It is further to inform you that Bar Council of India is in process of filing miscellaneous petitions with a request to withdraw

transfer petitions and other SLP pending before the

Hon'ble Supreme Court.”

131. It is stated to have been published in Gazette of India vide Extraordinary, Part-III Section-4, published by Authority No.251, New Delhi, Saturday, September 28, 2013.

132. Subsequently, the One Man Committee has substituted the word, 'limine' in the report, at paragraph 3, further deleted the following three lines. “The Hon'ble Supreme Court although dismissed the writ petitions filed by the petitioner challenging the order passed by Madras High Court, but, Hon'ble Supreme Court has not passed any speaking order.”

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133. Substitution made by the One Man Committee is with reference to confirmation of the order passed by the Apex Court in SLP.No.13846/2010 against the order made by the High Court in W.P.No.14877 of 2009 in the case of M.Santhosh Antony Vareed vs. The Registrar, Tamil Nadu Dr.Ambedkar Law University, reported in 2009 (8) MLJ 1677.

134. As stated supra, in the counter affidavit filed in M.Santhosh Antony Vareed's case, the Bar Council of India has clearly stated as to how Rules of Legal Education, 2008, have been framed in consultation with the Universities and State Bar Councils and that the Bar Council of India, has resolved and adopted to follow the same in the law colleges, and Universities.

135. In K.Sakthi Rani vs. The Secretary to Bar Council of Tamilnadu, reported in 2010 (2) L.W. 746, the question that came up for consideration was whether persons who studied law, without basic degree, but obtained Post Graduate degree in Open Universities are entitled to be enrolled as Advocates, and as to the applicability of Rule

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2(8), Rule 4 and Rule 5 of the Legal Education Rules, 2008.

136. Specific questions framed by the Hon'ble Division Bench of the Madras High Court, are (i) whether the Rules of Legal Education, 2008 are in accordance with the powers conferred under Section 7 (1)(h)&(i), 2 (1) 1(3) 3(a) and 49 (1a) (ag) (af) and (d) of Advocates Act, 1961 or not?; (ii) whether the explanation to Rule 5 of the Rules of Legal Education, 2008 is beyond the rule making power conferred on the Bar Council of India under Section 49 of the Advocates Act, 1961 and hence becomes ultra vires and unconstitutional?; (iii) Is the condition imposed by way of explanation to Rule 5 of the Rules of Legal Education, 2008 is contrary to Section 24 of the Advocates Act, 1961 by which powers are vested only with the State Bar Council?

137. After considering a catena of decisions and the statutory provisions of the Advocates Act, 1961, at paragraph 23, the Hon'ble Division Bench of this Court, held as follows:“23. Therefore, a conjoint reading of Sections 7,

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24(1)(c)(iii) and (iii a), 49(1)(ag) and (ah) of the Act, clearly provide the required power and authority for the Bar Council of India to prescribe the minimum qualification, standard, inclusive of minimum marks, attendance, curriculum and other incidental qualifications to a Law University and the Law College recognised by it. Accordingly, the Bar Council of India in exercise of its power under Sections 7(1)(h)&(i), 24(1)(c)(iii) and (iii a), 49(1)(af), (ag) and (d) of the Advocates Act, 1961, has introduced the Rules of Legal Education, 2008, which has come into effect from 14.09.2008 onwards.”

138. At paragraphs 38 to 40, the Hon'ble Division Bench of this Court, further held as follows:“38. Therefore, a reading of the above said judgment would clearly show that the Bar Council of India has got ample powers under the Advocates Act, 1961 as well as the Rules of Legal Education, 2008. 39. Inasmuch as the Rules of Legal Education, 2008, have been introduced by exercising the power under the Advocates Act, 1961, we are of the considered view that the said rules have the legal sanction under the Advocates Act, 1961. 40. We are also of the view that explanation to Rule 5 of the Rules of Legal Education, 2008, in particular, and the Rules in general, are not beyond the rule making power conferred on the Bar Council of India under Sections 7(1)(h) and (i), 24 and

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49(1) of the Advocates Act. Similarly, the said rules are not contrary to Section 24 (1) of the Advocates Act, 1961. A conjoint reading of Sections 7(h) and 49(1)(af), (ag) and (d) of the Act, clearly gives such a power to the Bar Council of India.”

139. At paragraph 45, the Hon'ble Division Bench of this Court has further held as follows:“45. In fact, the Hon'ble Apex Court has specified in the said judgment that Section 49(1)(af) of the Act deals with the minimum qualification required for admission to a course in law in a recognised University and the said provision does not have anything to do with the rules impugned therein. The Hon'ble Apex Court was also considering the scope of Sections 7(1)(h), 24(3)(d) and 49(1)(ag) and (ah) and not Section 49(1)(af) of the Act. Therefore, we are of the considered view that the above said two judgments rendered by the Hon'ble Apex Court do not help the case of the petitioners. Accordingly, we answer Points (i), (ii) and (iii) in favour of the respondents that the Rules of Legal Education, 2008, are in accordance with the power conferred under Sections 7(1)(h)&(i), 24(1)(c)(iii) and (iii a), 49(1)(af), (ag) and (d) of the Advocates Act, 1961 and explanation to Rules 5 of the Rules of Legal Education, 2008, is in accordance with Section 49 of the Act and not contrary to Section 24(1) of the Advocates Act and hence, they are constitutional and valid in law.”

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140. Some of the decisions considered by the Hon'ble Division Bench of this Court are reproduced from the judgment in Sakthi Rani's case (cited supra), as hereunder:(i) The Division Bench of the Bombay High Court in Inamdar Vahab v. Symbosis Society's Law College, Pune reported in AIR 1984 BOMBAY 451, while dealing with the power of the Bar Council of India in prescribing minimum percentage of marks in the qualifying examination for admission to the law course, has held that such a rule having rational nexus to the purpose sought to be achieved and having passed in exercise of power under Section 7(h) and (i), 24 and 49(1) of the Advocates Act, 1961, is constitutional and intra vires the parent Act. The Division Bench of the Bombay High Court has observed as follows: "... No profession can maintain high standard if it is allowed to be inundated by persons who reluctantly took up the law course because having failed to secure admission to the courses of their choice, they have nothing else to do.

The

prescribed minimum qualification, therefore, has a rational nexus to the purpose sought to be achieved. We also do not feel that the percentage fixed is in any manner arbitrary. It is reasonable, and more so in view of the general pattern of percentage of marks generally obtained at the qualifying

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examinations.

We are told that practically similar qualifying

standard is laid down for admission to other professional courses. There is, therefore, no substance in the challenge to the rule on the basis of which the admissions of the petitioners and others were cancelled." (ii) In Meenakshi Sundaram, President, National Union of Journalist, Madras v. The Director of Legal Studies, Madras Law College, Madras and others reported in (1981) 2 MLJ 141, has upheld the stand taken by the Government that a student with B.G.L., correspondence degree would not be considered for admission to B.L., degree course of the Madras University. The Division Bench of this Court has observed as follows: "10. Regarding the first contention that the rules framed by the Bar Council of India are outside the scope of its powers under the statute itself, we have already extracted the provisions of Sections 7(1)(h) and (t), 10(2), 24(1)(c)(iii) and (iiia) and 49(1)(d) of the Act. The argument of the appellant is that Section 7(1) merely states that the functions of the Bar Council of India shall be to promote legal education and to lay down standards of such education, and that laying down of standards for such education will not include the power to prescribe that the course undergone should be regular and not by correspondence or prescribe a minimum percentage of

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attendance at the classes.

According to the appellant, the

expression 'standards of such education' occurring in Section 7(1)(h) will only refer to the excellence of the standard aimed at, and it 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.

The appellant also contended that Section

24(1)(a)(iii) merely referred to a three year course of study in law and that it did not refer to a three year regular course of study, attending classes in a college, and that therefore in making the rules in question the Bar Council of India went beyond its powers conferred by the relevant provisions.

statutory

We are unable to accept this argument.

The

expression 'to lay down standards of such education' occurring in Section 7(1)(h) 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.

As a matter of fact, the appellant

relied upon the meaning of the word 'standards' given in the Shorter Oxford English Dictionary and Chamber's Twentieth Century Dictionary. We have gone through those meanings, and we are not satisfied that there is anything therein which will have the effect of narrowing down the scope of the expression 'standards' occurring in Section 7(1)(h), as contended by the appellant. The Shorter Oxford English Dictionary, relied on by the appellant, gives the meaning of the word 'standard' as

129

follows"A definite level of excellence, attainment, wealth or the like, or a definite degree of any quality viewed as a prescribed object of endeavour or as the measure of what is adequate for some purpose." From this meaning, we are unable to hold that the prescription that the course, namely, attending lectures in a college, or that a candidate must have put in a particular percentage of attendance before obtaining a degree, can be said to fall outside the scope of the expression 'standard'. As a matter of fact, Section 7(1)(i) refers to the qualification for enrolment as an advocate, and the meaning of the word 'qualification' given in the same dictionary is as follows"A necessary condition, which must be fulfilled before a certain right can be acquired, an office held, or the like." Consequently, the necessary condition contemplated will take in attendance at regular classes in a college or school and also a particular percentage of attendance. Therefore, we are unable to agree with the appellant 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, in the sense that the students are required to attend regular classes and to put in certain percentage of attendance." 13. .... We are clearly of the opinion that the degree

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obtained after pursuing the correspondence course cannot be equated, in all circumstances, and in all respects with a degree obtained after attending regular classes...... Having regard to this factual position as stated by the University of Madras, it is not possible to hold that there is no difference between the B.G.L. degree of Madurai Kamarajar University obtained after pursuing 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, and therefore, it is not open to the appellant to contend that these unequal degrees must be treated as equals."

(iii) The Honourable Apex Court in Baldev Raj Sharma v. Bar Council of India and others reported in AIR 1989 SC 1541, has held that the qualifications and conditions imposed by the Bar Council of India regarding the regular attendance at the Law Colleges and the rejection of enrollment on the ground of the difference between a regular course and a course of study pursued as a private candidate, is valid and a candidate desiring enrollment as an advocate must fulfil the conditions mentioned under the Act and Rules.

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(iv) In Bar Council of India v. Aparna Basu Mallick reported in (1994) 2 Supreme Court Cases 102, the Honourable Apex Court was dealing with a case where enrollment was denied to a candidate on the ground that the said candidate has not attended the required lectures, tutorials and moot courts. The Honourable Apex Court has also approved the decision of the Bar Council of India for drawing distinction between a private candidate and a regular candidate. The Honourable Apex Court has observed in the above said judgment as follows:"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 a qualification for enrolment as an advocate and for that purpose to visit and inspect the Universities. This power of recognition of Universities is conferred where the degree of law of that 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 an advocate under special rule made in that behalf. No such rule was relied upon as having

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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 must 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 Baldev Raj Sharma 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

133

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 in Aparna Basu Mallick v. Bar Council of India is erroneous."

(v) In Bar Council of India v. Board of Management, Dayanand College of Law and others reported in JT 2006 (10) SC 603, the Honourable Apex Court was pleased to hold that the Bar Council of India is concerned with the standard of legal profession and the equipment of those who seek entry into those profession and it was further observed that the Universities and the State Government concerned will have to act in accordance with the requirements set down by the Bar Council of India. It was further observed that the Bar Council of India retains adequate power to control the course of studies in law, the power of inspection, the power of recognition of degrees and the power to deny enrolment to law degree holders.

141. Distinguishing as to how the decision rendered by the Hon'ble Apex Court in Indian Council of Legal Aid and Advice and others vs. Bar

134

Council of India and another, reported in 1995 (1) SCC 732 was not applicable to the challenge to the Rules of Legal Education, 2008, in K.Sakthi Rani's case, the Hon'ble Division of this Court, at paragraphs 40, 42, 43, 45, has held as follows:“40. We are also of the view that explanation to Rule 5 of the Rules of Legal Education, 2008, in particular, and the Rules in general, are not beyond the rule making power conferred on the Bar Council of India under Sections 7(1)(h) and (i), 24 and 49(1) of the Advocates Act. Similarly, the said rules are not contrary to Section 24 (1) of the Advocates Act, 1961. A conjoint reading of Sections 7(h) and 49(1)(af), (ag) and (d) of the Act, clearly gives such a power to the Bar Council of India. 42. The issue involved in Indian Council of Legal Aid and Advice and others v. Bar Council of India and another reported in (1995) 1 Supreme Court Cases 732, is as to whether the condition imposed by the Bar Council of India preventing the enrollment of a candidate who completes 45 years and above, is valid or not. Therefore, the Honourable Apex Court was dealing with the case wherein the restriction was sought to be imposed which is after the completion of the law course. The Honourable

Apex

Court,

after

considering

Sections

24,

49(1)(ag), (ah) and 7 of the Advocates Act, 1961, has held that such a power exercised by the Bar Council of India, is unconstitutional and contrary to Section 24(1) of the Act,

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inasmuch as Section 24(1) of the Act prescribes conditions for enrollment into the State Roll and therefore, the Bar Council of India does not have the power. 43. The Honourable Apex Court also considered Section 24(3)(d) of the Act, by holding that the said sub-section can only be used to qualify a person who was otherwise disqualified under Section 24(1) of the Act. Hence, it is clear that the Honourable Apex Court was dealing with the case where the Bar Council of India sought to prevent the enrollment which was in the domain of the State Bar Council. The Honourable Apex Court was also dealing with Section 49(1)(ag) and (ah) and not the power exercised by the Bar Council of India in the present case under Section 49(1)(af) and (d) read with Section 7(1) of the Act. 45. In fact, the Honourable Apex Court has specified in the said judgment that Section 49(1)(af) of the Act deals with the minimum qualification required for admission to a course in law in a recognised University and the said provision does not have anything to do with the rules impugned therein. The Honourable Apex Court was also considering the scope of Sections 7(1)(h), 24(3)(d) and 49(1)(ag) and (ah) and not Section 49(1)(af) of the Act. Therefore, we are of the considered view that the above said two judgments rendered by the Honourable Apex Court do not help the case of the petitioners. Accordingly, we answer Points (i), (ii) and (iii) in favour of the respondents that the Rules of Legal Education,

136

2008, are in accordance with the power conferred under Sections 7(1)(h)&(i), 24(1)(c)(iii) and (iii a), 49(1)(af), (ag) and (d) of the Advocates Act, 1961 and explanation to Rules 5 of the Rules of Legal Education, 2008, is in accordance with Section 49 of the Act and not contrary to Section 24(1) of the Advocates Act and hence, they are constitutional and valid in law.”

142. Thus the Hon'ble Division Bench of this High Court in K.Sakthi Rani's case, has categorically held that Rules of Legal Education, 2008, have been framed in accordance with the powers conferred under Sections 7(1)(h)&(i), 24(1)(c)(iii) and (iii a), 49(1)(af), (ag) and (d) of the Advocates Act, 1961 and hence, they are constitutionally valid.

The

Hon'ble Division Bench further held that the explanation to Rule 5 of the Rules of Legal Education, 2008, is neither contrary to Section 24(1) of the Act, nor beyond the rule making power conferred on the Bar Council of India under section 49 of the Advocates Act, 1961.

143. From the reading of the judgment in K.Sakthi Rani's case, it is evident that the Hon'ble Division Bench of this Court has considered the powers of the Bar Council of India to lay down the minimum qualifications

137

required for admission to law degree courses in recognised Universities and that Rules of Legal Education, 2008, have been framed in accordance with the powers conferred under Sections 7(1)(h)&(i), 24(1)(c)(iii) and (iii a), 49(1)(af), (ag) and (d) of the Advocates Act, 1961.

144. In V.Sudeer vs. Bar Council of India and another, reported in 1999 (3) SCC 176, the question which came up for consideration is whether, the Bar Council of India can frame Bar Council of India Training Rules, 19957 and whether it is traceable to the provisions of the Advocates Act, 1961 in particular Sections 24(1), (3)(d), 17, 7, 49(af), (ah), 23, 28, 29, 33, 34(1), 49-A & 52, pre Enrollment Training and Examination, for being qualified to be enrolled as an advocate on the State roll. While considering that Section 49(ah) pertains to only post enrollment conditions for practice by advocate and not with preenrollment training, the Hon'ble Supreme Court set aside the same. While considering the scope of Section 7(1)(h) of the Advocates Act, the Hon'ble Supreme Court at paragraph 19 of V.Sudeer's case, held as follows:“It can obviously promote legal education by laying down standards of such education in consultation

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with the respective universities in India imparting such education. The words Universities in India imparting such education as found in clause (h) of sub-section (1) leave no room for doubt that the question of imparting legal education is entrusted to the Universities in India and not to the Bar Council of India. All that the Bar Council of India can do is to suggest ways and means to promote such legal education to be imparted by the Universities and for that purpose it may lay down the standards of education, syllabi in consultation with the Universities in India. It is, therefore, difficult to appreciate how for promoting legal education

through

the

Universities

imparting

legal

education in India, the Bar Council of India can itself take up the role of laying down pre- enrolment training for applicants seeking to enter legal profession by getting enrolled under Section 24 of the Act.”

145. In the same paragraph, the Hon'ble Supreme Court has further held that functions of the Bar Council of India under Section 7 were not enlarged to cover such a provision for pre-enrolment training to applicants by suitably entrusting the Bar Council of India such a function. Save and except Section 7(1)(h) there is no sub-section in the said Section which entitles the Bar Council of India to prescribe any pre-enrolment training or examination to be undertaken by the prospective professional

139

who wants to enrol himself as such once he satisfies the requirements and the conditions for such enrolment as laid down by Section 24(1).

146. Even in V.Sudeer's case, the Hon'ble Supreme Court has made it clear that it is the statutory function of the Bar Council of India under Section 7(1)(h) of the Advocates Act, is 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.

147. In Om Kumar and others vs. Union of India, reported in 2001 (2) SCC 386, the Hon'ble Supreme Court considered a case of imposition

of

punishment

and

the

Wednesbury

Principles

of

proportionality. On the aspect of applying doctrine of proportionality and the restrictions to fundamental freedom under Article 19(2) to (6), the Hon'ble Supreme Court, held as follows:“Ever since 1950, the principle of “proportionality'' has indeed

been

applied

vigorously

administrative) action in India.

to

legislative

(and

While dealing with the validity

of legislation infringing fundamental freedoms enumerated in Article 19(1) of the Constitution of India, such as freedom of speech and expression, freedom to assemble peaceably,

140

freedom to form association and unions, freedom to move freely throughout the territory in India, freedom to reside and settle in any part of India. The Supreme Court has occasion to consider whether the restrictions imposed by legislation were disproportionate to the situation and were not the least restrictive of the choices. The burden of proof to show that the restriction was reasonably lay on the State.

“Reasonable

restrictions” under Articles 19(2) to (6) could be imposed on these freedoms only by legislation and courts had occasion throughout to consider the proportionality of the restrictions. In cases where such legislation is made and the restrictions are reasonably yet, if the statute concerned permitted the administrative authorities to exercise power or discretion while imposing

restrictions

in

individual

situations.,

question

frequently arises whether a wrong choice is made by the administrator

for

imposing

restriction

or

whether

the

administrator has not properly balanced the fundamental right and the need for the restriction or whether he has imposed the least of the restrictions or the reasonable quantum of restriction etc. In such cases, the administrative action in our country, has to be tested on the principle of “proportionality”, just as it is done in the case of the main legislation. This, in fact, is being done by our courts. Administrative action in India affecting fundamental freedoms has always been tested on the anvil of “proportionality” in the last fifty years even though it has not been expressly stated that the principle that is applied

141

is the '''proportionality'' principle.”

148. Determination of qualifications for admission, pattern of study, curriculum and many other matters, for promotion of legal education and standards of such education, etc, are the functions of the Bar Council of India falling under Section 7(1)(h) of the Advocates Act in consultation with the Universities and the State Bar Councils.

That

cannot be disputed by the Bar Council of India and rules have been framed to that effect under Part IV of the rules of Legal Education 2008. Prescription of age is one of the eligibility criteria to be taken into consideration for admission to a college or University. Section 24 of the Advocates Act lays down the qualification of a person to be appointed as advocate on a State Roll besides the qualifications prescribed therein. As per Section, no person shall be admitted as advocate on the State Roll unless he has completed the age of 21 years.

149. Right to admission to higher educational qualification and prescription of age limit for admission cannot be said to be violative of Articles 14 and 21 of the Constitution of India, for the reason that it cannot be claimed as a fundamental right above the age of 14 years.

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Insofar as Article 14 is concerned, it depends upon whether there is a power vested with the authority to prescribe age limit. The said issue is also decided in P.Nithiyan & P.Prasanna v. State of Tamil Nadu, reported in 1994 WLR 624, in which, a Hon'ble Division Bench of this Court held that age limit can be prescribed for admission to educational courses and it was also approved by a Full Bench of this Court in S.R.Bhupeshkar v. The Secretary, Selection Committee, Sambarmathi Hostel, Kilpauk Medical College, Hostel Campus, Madras-10 and another [WP.No.12517 of 1994, dated 23.12.1994]. The same was the view in A.Balasubramaniam v. Secretary of Government, Education Department, reported in AIR 1996 Madras 95, wherein, this Court held that fundamental right to education is guaranteed only upto the age of 14 years and not beyond that.

In the light of the above decisions,

contention of the learned counsel for the Bar Council of India that the administrative decision taken by the Council has to be considered with reference to the application of the principles of proportionality, cannot be countenanced. 150. Clause 28 of the Legal Education Rules prescribing age, has been framed in exercise of the powers under Sections 7(1)(h) and (i),

143

24(1)(c)(iii) and (iiia), 49(1)(af), (ag) and (d) of the Advocates Act, 1961, which deals with promotion of legal education and laying down the standards for such education. When the Bar Council of India rules deals with duration of the course, eligibility for admission, prohibition to register for two regular course of study, minimum marks in qualifying examination for admission, standard of courses, process and manner of running integrated course, semester system, minimum infrastructure, end semester test and prohibition against lateral entry and exit etc.,

it

cannot be said that it has no competence to fix upper age, for admission as done in the case of prescribing a minimum age for enrollment as an advocate, under Section 24 of the Advocates Act.

When Rules of Legal

Education, 2008, were framed in consultation with the Universities and the State Bar Councils, it cannot be contended that the Bar Council of India has no powers to fix the upper age for admission to law degree courses. When Bar Council of India is mandated 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 Council, power is conferred on the Bar Council of India to make rules with reference to the subject mentioned in Section 49(af) and (d) of the

144

Advocates Act. Therefore, with due respect to the decision of the Punjab and Haryana High Court in Ankit Bhardwaj vs. Bar Council of India, (W.P.No.12528 of 2011, dated 20.10.2011), we are of the view that the Bar Council of India while framing standards of legal education in Chapter II, fixing eligibility for admission, prohibition to register for two regular course of study, minimum marks in qualifying examination for admission, standard of courses, process and manner of running integrated course, semester system, minimum infrastructure, end semester test and prohibition against lateral entry and exit etc, is empowered to prescribe the upper age limit for admission.

151. Yet another factor to be noticed in this case is that decision in K.Sakthi Rani's case has been rendered on 16.04.2010. Bar Council of India represented the said case. Arguments of the Bar Council of India extracted at paragraph 17 of the judgment is reproduced hereunder:“17.

Shri.R.Thyagarajan,

learned

senior

counsel

appearing for the Bar Council of India took us through the relevant provisions of the Bar Council of India rules, 1961 and the Rules of Legal Education, 2008 and submitted that a conjoint reading of Section 7(1)(f)(h)&(g) read with Section 24(1) and Section 49(af)(ag) would clearly establish the fact

145

that the rules framed by the Bar Council of India are well within its powers. The learned senior counsel further submitted that the Bar Council of India has answered the reference made by the Bar Council of Tamil Nadu in accordance with the Section 26(2) of the Advocates Act, 1961. Therefore based upon the said reference the Bar Council of Tamil Nadu has made its decision. Hence, the learned counsel submitted that the impugned orders passed are well within the powers of the Bar Council of India and Bar Council of Tamil Nadu respectively. It is further submitted that from the object of the Rules it governs not only the degree in law but also the education prior to it. Hence a law degree without a basic degree is not a valid degree. The learned counsel has relied upon the judgment of the Apex Court in BALDEV RAJ SHARMA v. BAR COUNCIL OF INDIA AND OTHERS [AIR 1989 SC 1541] and submitted that a person seeking enrollment has to comply with the provisions of the Act and Rules and therefore the petitioners do not have any other choice except to abide by it. The learned senior counsel has relied upon the judgment in BAR COUNCIL OF INDIA v. BOARD OF MANG. DAYANAND COLL. OF LAW AND OTHERS [JT 2006 (10) SC 603] and submitted that the Bar Council of India has got control over the legal education. It is further submitted that the Bar Council of India has got the power to deny the enrollment particularly with reference to the standard of legal profession and the entitlement of those who seek entry to it. It is also submitted that the judgment of the Apex Court is binding on the Bar

146

Council of India being the law of the land under Article 14 of the Constitution of India and therefore the relief sought for cannot be granted.”

152. When the Bar Council of India has contended that rules of Legal Education 2008 has been framed in accordance with the provision Section 7(1)(f)(h) & (g) read with Section 24(1) and Section 49(af)(ag) and thus sustained the Rules of Legal Education, 2008, as rightly pointed out by the learned counsel for the petitioner in Rajan Sharma Vs. The Bar Council of India and another (order dated 20.10.2011, made in C.W.P.No.20966 of 2010), the Bar Council has not represented the case before the Punjab and Haryana High Court. It has not filed any counter affidavit. When the competence in framing the legal education rules was sustained in 2010 itself by a Hon'ble Division Bench of this Court in K.Sakthi Rani vs. The Secretary to Bar Council of Tamilnadu, reported in 2010 (2) L.W. 746, it is now known, why the Bar Council of India, has not filed any objection.

153. Counter affidavit filed by the Bar Council of India in SLP No.13846 of 2010 in M.Santhosh Antony Vareed's case, executed in

147

September 2012, as extracted supra, is to sustain the competence of the Bar Council of India, in framing the Rules of Legal Education, 2008 and the contention was that rules have been framed in consultation with the Universities and State Bar Councils.

Having framed the rules in

consultation with the Universities and the State Bar Councils, adopted the same in the year 2008 and decided to implement the recommendations of the Legal Education Committee of the Bar Council of India on 03.08.2000, and having accepted the three member committee report 06.10.2009 and approved the same by the Bar Council of India on 24.10.2009, decided to implement the recommendations including the enforcement of the legal education rules, it is not open to the Bar Council of India to appoint a One Man Committee to revisit clause 28, age on admission. Even taking it for granted that the Bar Council of India has the competence to nominate a One Man Committee to go into the issue, which took note of the decision in M.Santhosh Antony Vareed's case, upheld on 11.03.2013 and observed that SLP has been dismissed in limine, the One Man Committee, ought to have considered that the Hon'ble Division Bench of the Madras High Court has already upheld the entire Rules of Legal Education, 2008 and clause 28 in Schedule III Part IV of the Bar Council of India Rules, is a

148

part of the rules. Decision in Ankit Bhardwaj vs. Bar Council of India, (W.P.No.12528 of 2011), has been rendered on 20.10.2011. Despite the same, the Bar Council of India has filed a detailed counter affidavit in September' 2012, before the Hon'ble Supreme Court and sustained the judgment in Santhosh Antony Vareed's case.

154. Thus on the day, when the One Man Committee considered the divergent views rendered in Santhosh Antony Vareed's, K.Sakthi Rani's and Ankit Bhardwaj's cases, there was a dispute regarding the prescription of upper age for admission to law courses. That being the case, the Bar Council of India should have considered rule 43 of Part IV of the Legal Education Rules, which states that Legal Education Committee of the Bar Council of India shall be the dispute resolution body for all disputes relating to legal education, which shall follow a procedure ensuring natural justice for such dispute resolution as is determined by it. If resolution is passed subsequent to the enactment of the Advocates Act, it will not be protected under rule 45 of the said rules. In the case on hand, the Bar Council of India has not adopted the procedure envisaged in rule 43 Chapter VI Part IV of the Legal Education Rules, 2008.

149

155. Earlier, before this Court, the Bar Council of India has argued to sustain the Rules of Legal Education, 2008.

Before the Hon'ble

Supreme Court, the Bar Council of India has filed a detailed counter affidavit stating that rules have been framed in consultation with the Universities and State Bar Councils. Clause 28 forms part of the rule. Let us consider, what amendment means.

(i) In ordinary parlance, “Amendment” means correction of an error. In U.S. v. La Franea reported in (1931) 262 U.S. 568, the word, “Amendment” is used here in the sense of an Act which changes the law. A law is amended, when it is, in whole or in part, permitted to remain, and something is added to or taken from it, or it is in some way changed or altered to make it more complete or perfect, or to fit it the better to accomplish the object or purpose for which it was made, or some other object or purpose. It is an alteration or change of something established as law.

(ii)

In Sajjan Singh v. State of Rajasthan reported in AIR 1965

150

SC 845 = 1965 (1) MLJ (SC) 57, the Supreme Court held as follows: “The dictionary meaning of the word, “amend” is to correct a fault or reform. .........It is well known that the amendment of a law may in proper case include the deletion of anyone or more of the provisions of the law and substitution in their place of new provisions.”

(iii)

The ordinary meaning of the word “amend”, as given in

Shorter Oxford Dictionary, is to make alterations. In some of the dictionaries, it is given as meaning, “to alter, modify, rephrase, or add to or subtract from”.

(iv)

In Words and Phrases, Second Series, Vol.I, the word,

“amend” has been treated as synonymous with correct, reform and rectify. It is also stated that “amendment” of a statute implies its survival and not destruction.

(v)

The word “amendment” in legal phraseology, does not

generally means the same thing as “repeal”, because there is a distinction between a “repeal”, but it does not follow that “amendments of statute may not often be accomplished by repeals of some of its parts”

151

and though “amendment may not directly amount to repeal, it may have such a consequential effect”.

(vi)

In Crawford's Construction of Statutes, it is stated that, “a

law is amended when is in whole or in part permitted to remain an something is added to, or taken from it, or it is in some way changed and altered in order to make it more complete, or perfect, or effective. It should be noticed, however, that an amendment is not the same as a repeal, although it may operate as a repeal to a certain degree. A repeal is the abrogation or destruction of a law by Legislative Act.”

(vii) According to “Standard Dictionary”, Funk and Wagnalls (1894), the meanings of “amendment” are, “The act of changing a fundamental law, as of a political constitution, or any change made in it according to a prescribed mode of procedure; as to alter the law by amendment; an amendment of the procedure; as, to alter the law by amendment; an amendment of the Constitution”. 156. In the light of the definition, for proposing any amendment in the rules, by rescinding or withdrawing Clause 28, Bar Council of India

152

should have followed the procedure envisaged in rule 47 of Chapter VI of Part IV of the rules of Legal Education, 2008, which states that any amendment proposed by the Bar Council of India in the rules shall be carried through consultation with the Universities and the State Bar Councils by way of circulation of the proposals to the Universities and the State Bar Councils for the written submission within the scheduled notified date and after consideration of such written submission on merit. The Legal Education Committee/Bar Council of India shall on consideration of the representation finalise the said amendments, which shall come into force by way of notification in the website. The Bar Council of India shall also send the hard copy of notification to the Universities. Provided that any provision in the schedule may be amended by the Bar Council of India on the recommendation of the Legal Education Committee and the same shall also be notified in the website of the BCI for enforcing the provision. 157. Here again, it is manifestly clear that clause 28 in Schedule III of Part IV of the Bar Council of India Rules may be amended by the Bar Council of India, only on the recommendation of the Legal Education Committee. In the case on hand, there is no recommendation of the Legal

153

Education Committee of the Bar Council of India, which comprises of five members of the Bar Council of India nominated by the Bar Council of India and five co-opted members comprising the Chairman who has to be a former Judge of the Supreme Court and a Sitting Hon'ble Chief Justice of any High Court, other Judges, well known Academicians, UGC Chairman,

Government

representatives,

high

profile

Jurist,

and

distinguished legal luminaries of the country. It is well settled that exercise of power by the authority should be in the manner provided for in the statute and not otherwise.

Reference can be made to the

following decisions:-

(i) In T.Ramamoorthy v. The Secretary, Sri Ramakrishna Vidyalaya High School, etc. & Others reported in 1998 Writ. LR 641, at Paragraph 6, held as follows: "If the statutory provision enacted by the Legislature prescribed a particular mode for terminating the service or dismissing the teaching or a non-teaching staff of a school, it can and has to be done not only in that manner alone, but it cannot be done in any manner too. This principle that where a power is given to do a certain thing in a certain way, things must be done in that way and not otherwise and that the

154

other method of performance is necessarily precluded, is not only well settled, but squarely applies to this case also in construing the scope of the power as also its exercise by the management under Section 22 of the Act."

(ii) In U.P. State Bridge Corpn. Ltd. v. U.P. Rajya Setu Nigam S. Karamchari Sangh, [(2004) 4 SCC 268], the Supreme Court, at Paragraph 12, held as follows: “12. Although these observations were made in the context of the jurisdiction of the civil court to entertain the proceedings relating to an industrial dispute and may not be read as a limitation on the Court’s powers under Article 226, nevertheless it would need a very strong case indeed for the High Court to deviate from the principle that where a specific remedy is given by the statute, the person who insists upon such remedy can avail of the process as provided in that statute and in no other manner.”

(iii) In Captain Sube Singh v. Lt. Governor of Delhi reported in [(2004) 6 SCC 440], the Supreme Court, at Paragraph 29, held as follows: “29. In Anjum M.H. Ghaswala, a Constitution Bench of this Court reaffirmed the general rule that when a statute

155

vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself. (See also in this connection Dhanajaya Reddy v. State of Karnataka.) The statute in question requires the authority to act in accordance with the rules for variation of the conditions attached to the permit. In our view, it is not permissible to the State Government to purport to alter these conditions by issuing a notification under Section 67(1)(d) read with subclause (i) thereof.”

(iv) The Supreme Court in State of Jharkhand v. Ambay Cements reported in 2005 (1) CTC 223, at Paragraph 27, held as follows: "27. Whenever the statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to severe consequences, such requirement would be mandatory. It is the cardinal rule of the interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. It is also settled rule of interpretation and where a statute is penal in character, it must be strictly construed and followed. Since the requirement, in the instant case of obtaining prior permission is mandatory, therefore, noncompliance of the same must result in cancelling the

156

concession made in favour of the grantee-the respondent herein."

158. Considering the importance of legal education, dispute if any, relating to legal education and the amendment to the rule or schedule, the word, “shall” alone is used. Consultative process is specifically mentioned.

159. In Kusum Ingots & Alloys Ltd., vs. Union of India, reported in 2004 (6) SCC 254, at paragraphs 21 and 22 held as follows:''A parliamentary legislation when receives the assent of the President of India and published in an Official Gazette, unless specifically excluded, will apply to the entire territory of India. If passing of a legislation gives rise to a cause of action, a writ petition questioning the constitutionality thereof can be filed in any High Court of the country. It is not so done because a cause of action will arise only when the provisions of the Act or some of them which were implemented shall give rise to civil or evil consequences to the petitioner. A writ court, it is well settled would not determine a constitutional question in vacuum. The court must have the requisite territorial jurisdiction. An

order

passed

on

writ

petition

questioning

the

157

constitutionality of a Parliamentary Act whether interim or final keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act.”

160. In Rajan Sharma Vs. The Bar Council of India and another [C.W.P.No.20966 of 2010, dated 20.10.2011], the Punjab and Haryana High Court, at paragraphs 9, 10 and 12, held as follows: “9. The impugned Clause 28 dealing with the age on admission occurring in Schedule-III appended to the Rules have been framed under Section 7(1)(h) and (i) and 24(1)(c)(iii) and (iiia), 49(1)(af), (ag), and (d) of the Advocates Act. Section 7 of the Advocates Act deals with the function of the Bar Council of India and Clause 7(1)(h) and (i) only deals with such functions of the Bar Council of India, which are aimed at promoting to legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and to recognize the Universities whose degree in law shall be a qualification for enrolment as an Advocate. Therefore, this clause would not arm the Bar Council of India to incorporate the provisions in the Rules like clause 28 concerning the age on admission to L.L.B. Course. Likewise, Section 24(i)(c) deals with person who may be admitted as an Advocate on a

158

State roll. It has got nothing to do with the age on admission and cannot be construed to have conferred power on the Bar Council of India to prescribe the maximum age for the purposes of admission to L.L.B. Five years' Course or L.L.B. Three Years' Course . 10. We are left to deal with Section 49(1)(af) and (ag) of the Advocates Act. The aforesaid clause (af) deals with the minimum qualification required for admission to a course of degree in law in any recognized University and clause (ag) deals with the class or category of the persons entitled to be enrolled as Advocates. Clause (d) of Section 49 (i) of the Advocates Act deals with the standards of legal education to be observed by universities in India and the inspection of universities for that purpose. We are afraid that even this Clause would not extend to grant competence to Bar Council of India to incorporate a provision concerning the maximum age for admission to L.L.B. Course. The matter has been discussed in detail in Indian Council of Legal Aid and Advice's case (supra) by Hon'ble the Supreme Court. It is also relevant to mention that a similar view was taken by a Division Bench of Madras High Court in the case of M. Radhakrishnan v. The Secretary, the Bar Council of India, AIR 2007 Madras 108. Therefore, we find that the provisions of Clause 28 of Schedule-III appended to the Rules are beyond the legislative competence of the Bar Council of India. Clause 28 ultra vires the provisions of Sections 7(1)(h) and (i), 24(1)(c) (iii) and

159

(iiia) or Section 49(1)(af) (ag) and (d) of the Advocate Act. Even otherwise, the Rule is arbitrary as it introduces an invidious classification by dividing one Class of student into two artificial and irrational Classes by prescribing the maximum age for admission to law courses.

12. As

a sequel to the above discussion, the writ petitions are allowed. The petitioners who have been admitted on the basis of the interim order would continue and their admissions should not be cancelled on the ground that they did not fulfill the criteria of maximum age."

161. In Union of India Vs. Textile Technical Tradesmen Associator and others reported in 2014 (6) CTC 427 (DB), at paragraph 12, it has been held as follows: “12.

The

Industrial

Disputes

Act,

1947

is

a

Parliamentary Legislation and if any of the High Court declares a provision of the Parliamentary Legislation as unconstitutional, the said decision is applicable throughout the territory of India/wherever the enactment was held applicable. The said issue was considered by the Honourable Supreme Court in the decision reported in (2004) 6 SCC 254 (Kusum Ingots & Alloys Ltd. v. Union of India). In paragraphs 21 and 22 the Supreme Court held thus, "21. A parliamentary legislation when it receives the

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assent of the President of India and is published in the Official Gazette, unless specifically excluded, will apply to the entire territory of India. If passing of a legislation gives rise to a cause of action, a writ petition questioning the constitutionality thereof can be filed in any High Court of the country. It is not so done because a cause of action will arise only when the provisions of the Act or some of them which were implemented shall give rise to civil or evil consequences to the petitioner. A writ court, it is well settled, would not determine a constitutional question in a vacuum. 22. The Court must have the requisite territorial jurisdiction. An order passed on a writ petition questioning the constitutionality of a parliamentary Act, whether interim or final keeping in view the provisions contained in clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act."

(Emphasis Supplied)

A Division Bench of the Karnataka High Court in the decision reported in AIR 2014 Karnataka 73 (Shiv Kumar v. Union of India) considered similar issue and following the above cited Supreme Court decision held that pronouncement on the constitutionality of a provision of a Central Act by a High Court would be applicable throughout India.”

162. In Shiv Kumar Vs. Union of India and others reported in AIR

161

2014 KARNATAKA 73, at paragraph 7, it has been held as follows: “7. Having heard learned counsel and on perusal of the judgment of the Kerala High Court in Soumya Ann Thomas, as well as the judgment of the Apex Court in Kusum Ingots and Alloys Ltd., what follows is that Section 10A(1) of the Act has been held to be unconstitutional being violative of Articles 14 and 21 of the Constitution. However, to save it from the vice of unconstitutionality, the expression 'two years' has been read down to 'one year' in sub-section (1) of Section 10A of the Act. The

Kerala

High

Court's

pronouncement

on

the

constitutionality of a provision of a Central Act would be applicable throughout India. This is made clear by Hon'ble Supreme Court in Kusum Ingots and Alloys Ltd., wherein it has been stated that an order passed on a Writ Petition questioning the constitutionality of a Parliamentary Act whether interim or final keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution, would have effect throughout the territory of India subject of course to the applicability of the Act. In that view of the matter, this Writ Petition would not call for any specific orders with regard to holding constitutionality or otherwise of sub-section(1) of Section 10A of the Act. Keeping in mind the pronouncement of the Division Bench of the Kerala High Court and reading the same in the context of Kusum Ingots and Alloys Ltd, the position of law with regard to sub-section (1) of Section 10A of the Act is now

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been made clear, particularly, insofar as State of Karnataka is concerned."

163. In Kshitij Sharma and another Vs. The Bar Council of India and another [Writ (Pil) Petition No.2497 of 2015, dated 04.03.2015], the Jaipur Bench of Rajasthan High Court, at paragraphs 9, 10 and 13, it has been held as follows: “9. It is submitted that the argument, that students ordinarily qualify for appearing in the CLAT at the age of 17 years, is not entirely correct, inasmuch as, in our country, a large number of students living in rural and semi urban areas, with various disadvantages suffered by them, as well as hardships to any one or more students due to any particular reason or causes, such as illness, may, by the time, he/she pass 10+2 Examination, crosses the age of 20 years. A large number of students living in rural areas, are not able to complete 10+2 Examination before the age of 20 years. It cannot be said that for admission in the 16 top Law Colleges, they do not have the best talent. They cannot be deprived of an opportunity to be admitted to the best Law College/s in the country. A preference is also given by the Supreme Court of India and various High Courts to the students of these law schools, to work as Law Clerks and Research Assistants. 10. It is stated by the petitioners that a large number

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of writ petitions are being filed in the High Courts across the country, in which almost all the High Courts have taken a prima facie view that the age of 20 years, as on 01.07.2015, for general category candidates, is arbitrarily low and is not rational and reasonable. Interim orders have been passed in many writ petitions in the High Courts. Reference has been made to the interim orders in writ petitions, filed in Allahabad High Court between 22.04.2014 to 25.07.2014. Learned Single Judge of the Rajasthan High Court has also passed an interim order on 09.02.2015 in S.B.Civil Writ Petition No.1978/2015, allowing the petitioner to appear in the Common

Law Admission

Test, 2015 Examination,

irrespective of the maximum age, subject to his satisfying all other conditions of eligibility. 13. The last date for submission of the application for Common Law Admission Test, 2015 has been fixed as 31.03.2015." 164. In Devasheesh Pathak and 20 others Vs. Bar Council of India and two others [Writ (C)No.5219 of 2015, dated 26.02.2015,], at paragraphs 9, 17, 18, 23 and 24, it has been held as follows: “9.At this stage, the attention of the Court was drawn to the historical background of CLAT which was introduced as a consequence of proceedings before the Apex Court for mitigating the hardship, both physical and financial, of the candidates due to multiple tests conducted by different

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colleges. The Law Commission of India in its 184th Report recommended

that

instead

of

requiring

''effective

consultation' with each University, the Advocates Act should instead be suitably amended to enable BCI to consult a representative body, which body, in turn should be constituted by UGC, thus ensuring that both BCI and UGC remains equal partners in regulating legal education. 17. Admittedly, the Bar Council of India as well as Bar Council of different States have been constituted under the Advocates Act, 1961 to consolidate the law relating to legal practitioners and to provide for the constitution of the Bar Councils and an All-India Bar. 18. A perusal of the provisions of the Advocates Act clearly goes to show that the Bar Council of India is a statutory authority constituted under Section 4 of the Advocates Act, 1961. It is competent to lay down the standards of legal education and recognition of the degree in law for admission as an advocate. Section 7 of the Advocates Act lays down the functions of the Bar Council of India which includes promotion of legal education and to lay down standards of such education in consultation with the Universities in India and the State Bar Councils. Sections 15 and 49 of the Advocates Act further empower the Bar Council of India to frame Rules for carrying out all its functions. 23.Punjab and Haryana High Court in the case of Ankit Bhardwaj vs. Bar Council of India, (W.P.No.12528 of 2011,

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dated 20.10.2011), while setting aside the aforementioned rule, inter alia, observed as follows; "We find that the provisions of Clause-28 of Schedule-III appended to the Rules are beyond the legislative competence of the Bar Council of India. Clause-28 is ultra vires the provisions of Section 7 (1) (h) and (I), 24 (I) (C) (iii) and (iiia) or Section 49 (I) (af) and (d) of the Advocates Act. Even otherwise, the Rule is arbitrary as it introduces and invidious classification by dividing one Class of student into two artificial and irrational Classes by prescribing the maximum age for admission to law courses. As a sequel to the above discussion, the writ petitions are allowed. The petitioners who have been admitted on the basis of the interim order would continue and their admissions should not be cancelled on the ground that they did not fulfill the criteria of maximum age." 24. The High Court of Punjab & Haryana at Chandigarh also held in the case of Rajan Sharma Vs. The Bar Council of India and another in Writ Petition No. 20966 of 2010 as follows; "9. The impugned clause 28 dealing with the age on admission occurring in schedule-iii appended to the rules have been framed under section 7(1)(h) and (i) and 24(1)(c)(iii) and (iiia), 49(1)(af), (ag), and (d) of the Advocates Act. section 7 of the Advocates Act deals with the function of the Bar Council of India and clause 7(1)(h) and (i)

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only deals with such functions of the Bar Council of India, which are aimed at promoting to legal education and to lay down standards of such education in consultation with the universities in India imparting such education and to recognize the universities whose degree in law shall be a qualification for enrolment as an advocate. therefore, this clause would not arm the Bar Council of India to incorporate the provisions in the rules like clause 28 concerning the age on admission to LLB course. likewise, section 24(i)(c) deals with person who may be admitted as an advocate on a state roll. it has got nothing to do with the age on admission and cannot be construed to have conferred power on the Bar Council of India to prescribe the maximum age for the purposes of admission to LLB five years' course or LLB three years' course. 10. We are left to deal with section 49(1)(af) and (ag) of the Advocates Act. the aforesaid clause (af) deals with the minimum qualification required for admission to a course of degree in law in any recognized university and clause (ag) deals with the class or category of the persons entitled to be enrolled as advocates. clause (d) of section 49 (i) of the Advocates Act deals with the standards of legal education to be observed by universities in India and the inspection of universities for that purpose. we are afraid that even this clause would not extend to grant competence to Bar Council of India to incorporate a provision concerning the maximum

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age for admission to LLB course. the matter has been discussed in detail in Indian Council of Legal aid and Advice's case (supra) by Hon'ble the Supreme Court. it is also relevant to mention that a similar view was taken by a Division Bench of Madras High Court in the case of M. Radhakrishnan v. the Secretary, the Bar Council of India AIR 2007 Madras 108. Therefore, we find that the provisions of clause 28 of schedule-iii appended to the rules are beyond the legislative competence of the Bar Council of India. clause 28 ultra vires the provisions of sections 7(1)(h) and (i), 24(1)(c) (iii) and (iiia) or section 49(1)(af) (ag) and (d) of the advocate act. even otherwise, the rule is arbitrary as it introduces an invidious classification by dividing one class of student into two artificial and irrational classes by prescribing the maximum age for admission to law courses. 12. As a sequel to the above discussion, the writ petitions are allowed. the petitioners who have been admitted on the basis of the interim order would continue and their admissions should not be cancelled on the ground that they did not fulfill the criteria of maximum age.""

165. Though the learned Advocate General, as well as the learned counsel for the Bar Council of India placed reliance on a decision in Kusum Ingots & Alloys Ltd., vs. Union of India, reported in 2004 (6) SCC 254 and contended that an order passed in a writ petition questioning the

168

constitutional validity of the central enactment or the rules framed thereunder has to be followed and binding on any other courts throughout the territory of India, in view of the provisions contained in clause 2 of Article 226 of the Constitution of India and sought to apply the doctrine of comity, there is no reason as to why the Hon'ble Division Bench decision of the Madras High Court in K.Sakthi Rani's case, was not taken note of and applied in proper perspective. When the Bar Council of India, sustained the rules of legal education 2008 in K.Sakthi Rani's case and having defended the rules in Santhosh Antony Vareed's case, before the Hon'ble Supreme Court by filing a detailed counter affidavit, as set out in the foregoing paragraphs, the Bar Council of India ought to have considered the decision on the point of law, where rules have been sustained. Even taking it for granted that there are divergent views, it ought not to have ignored the decision in K.Sakthi Rani's case. When the competence of the Bar Council of India, in framing the Rules of Legal Education, 2008, has been sustained in entirety, including Clause 28, it cannot be argued that it is not a precedent.

166. At this juncture, this Court deems it fit to consider few

169

decisions of the Hon'ble Apex Court, on the aspect, as to when, a judgment could treated as Judicial Precedent, binding on Courts. (i)

In State of Orissa vs. Sudhansu Sekar Misra, reported in AIR

1968 SC 647, the Hon'ble Supreme Court explained as to when a decision can be taken as a precedent, which as follows:“A decision is only an authority for what it actually decides. What is of the essence of a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic, this is what Earl of Halsbury LC said in Quinn v. Leathem, reported in 901 AC 495. 'Now before discussing the case of Allen vs. Flood, reported in 1898 AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides.

I entirely deny that it can be

quoted for a proposition that may seem to follow logically

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from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.” It is not profitable task to extract a sentence here and there from a judgment and to build upon it.”

(ii) In Union of India Vs. Dhanwanti Devi, reported in 1996 (6) SCC 44 = 1996 (7) Supreme 51, the Supreme Court has explained, what constitutes a precedent, which as follows:"Before adverting to and considering whether solatium and interest would be payable under the Act, at the outset, we will dispose of the objection raised by Shri Vaidyanathan that Union of India v. Hari Krishan Khosla reported in 1993 Supplement (2) SCC 149, is not a binding precedent nor does it operate as ratio decidendi to be followed as a precedent and is per se per incuriam. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi According to the well-settled theory of precedents, every decision contains three basic postulates— (i) findings of material facts, direct and inferential. A inferential finding of facts is the inference which the Judge draws from the direct, or perceptible

171

facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent.

The concrete

decision alone is binding between the parties to it, but it is the

abstract

ratio

decidendi.

ascertained

on

a

consideration of the judgment in relation to the subjectmatter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution.

A deliberate

judicial decision arrived at after hearing an argument on a

172

question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis.

It is the rule deductible from the

application of law to the facts and circumstances of the case which constitutes its ratio decidendi. Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges arc to employ an intelligent technique in the use of precedents.

(iii) In State of Punjab v. Devans Modern Breweries Ltd., reported in (2004) 11 SCC 26, the Hon'ble Supreme Court explained the doctrine of precedents and when a judgment becomes per incuriam. Paragraphs 334 to 336, 339 and 343, of the judgment are relevant and they are as follows:Precedent 334. The doctrine of precedent is a well-accepted principle. A ruling is generally considered to be binding on

173

lower courts and courts having a smaller bench structure: “A precedent influences future decisions. Every decision is pronounced on a specific set of past facts and from the decision on those facts a rule has to be extracted and projected into the future. No one can foresee the precise situation that will arise, so the rule has to be capable of applying to a range of broadly similar situations against a background of changing conditions. It has therefore to be in general terms and ‘malleable’ … No word has one proper meaning, nor can anyone seek to fix the meaning of words for others, so the interpretation of the rule remains flexible and open-ended. (See Dias Jurisprudence, 5th Edn., p. 136.)” 335. However, although a decision has neither been reversed nor overruled, it may cease to be “law” owing to changed conditions and changed law. This is reflected by the principle “cessante ratione cessat ipsa lex”. “… It is not easy to detect when such situations occur, for as long as the traditional theory prevails that judges never make law, but only declare it, two situations need to be carefully distinguished. One is where a case is rejected as being no longer law on the ground that it is now thought never to have represented the law; the other is where a case, which is acknowledged to have been the law at the time, has ceased

to

have

that

character

owing

to

altered

circumstances. (See Dias Jurisprudence, 5th Edn., pp. 14647.)”

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336. It is the latter situation which is often of relevance. With changes that are bound to occur in an evolving society, the judiciary must also keep abreast of these changes in order that the law is considered to be good law. This is extremely pertinent especially in the current era of globalisation when the entire philosophy of society, on the economic front, is undergoing vast changes. 339. Judicial discipline envisages that a coordinate Bench follow the decision of an earlier coordinate Bench. If a coordinate Bench does not agree with the principles of law enunciated by another Bench, the matter may be referred only to a larger Bench. (See Pradip Chandra Parija v. Pramod Chandra Patnaik, reported in 2003 (7) SCC 01, SCC at paras 6 and 7; followed in Union of India v. Hansoli Devi, reported in 2002 (7) SCC 01, SCC at para 2.) But no decision can be arrived at contrary to or inconsistent with the law laid down by the coordinate Bench. Kalyani Stores, reported in AIR 1966 SC 1686 and K.K. Narula, reported in AIR 1967 SC 1368, both have been rendered by the Constitution Benches. The said decisions, therefore, cannot be thrown out for any purpose whatsoever; more so when both of them if applied collectively lead to a contrary decision proposed by the majority. 343. It is also trite that the binding precedents which are authoritative in nature and are meant to be applied should not be ignored on application of the doctrine of sub

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silentio or per incuriam without assigning specific reasons therefor. I, for one, do not see as to how Kalyani Stores and K.K. Narula read together can be said to have been passed sub silentio or rendered per incuriam.

167. The Hon'ble Apex Court on consideration of the substantial questions of law raised in M.Santhosh Antony Vareed's case, in its discretion, has refused to grant even leave. Indisputably, the decision in M.Santhosh Antony Vareed's case is sustained, wherein, a learned single Judge has considered the rules of Legal Education 2008.

Though as

contended by the learned Advocate General, as well as learned counsel for the Bar Council of India that the rules were not tested in the abovesaid judgment, the fact remains that rules were considered and applied.

But the said contention cannot be made in respect of the

decision in K.Sakthi Rani's case decided as early as on 16.04.2010 which the Bar Council of India has conspicuously omitted to take note of, while revisiting the upper age limit for admission.

168. In exercise of the powers, under Section 7(1)(h) and (i), 24(I)(c)(iii) and (iiia), 49(1)(af), (ag) and (d) of the Advocates Act, 1961,

176

Rules of Legal Education, 2008, have been framed. Exercise of power has to be done in the manner provided therefor. As per the scheme of Advocates Act, 1961 and the Bar Council of India Rules, Bar Council of India is entrusted with the function to promote legal education and to lay down standards of such education in consultation with the Universities in India and the State Bar Councils. Thus, the State Bar Councils are also entrusted with a duty and task of promoting legal education. Eligibility for admission to law courses is also one of the factors, in the Rules of Legal Education, 2008.

169. Therefore, as rightly pointed out by the learned counsel for the petitioner, when the rules of Legal Education 2008 have been framed in consultation with the Universities and the State Bar Councils, The Bar Council of Tamil Nadu and Puducherry, has simply disowned its responsibility, when clause 28 of the Legal Education Rules 2008 was withdrawn by the Bar Council of India on its own, forgetting for a moment that the function of the Bar Council of India, as per Section 7(1)(h) of the Advocates Act, is to promote legal education and to lay down standards of such education in consultation with the Universities in India imparting

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such education and the State Bar Councils. Taking note of the decision in Rajan Sharma Vs. The Bar Council of India and another (order dated 20.10.2011, made in C.W.P.No.20966 of 2010 etc) the Bar Council of India has withdrawn Clause 28 and thereafter, withdrawn the SLP.

170. Again, as against the decision in Lohiya National Law University vs. Devasheesh Pathak and others, against W.C.No.5219/2015 passed by the Allahabad High Court, the Vice Chancellor/Chancellor Dr.Ram Manohar has withdrawn the SLP, reserving liberty to move the appropriate court, either to recall or review the impugned order. While granting permission, the Hon'ble Apex Court said that if such an application/petition is moved by the petitioner, the High Court shall consider the same and pass order in accordance with law. Withdrawal has been made in the year 2015. Order made in M.Santhosh Antony Vareed's case is merged with the judgment of the Hon'ble Supreme Court in SLP.No.13846 of 2010. There is nothing on record to indicate that the order made in Sakthi Rani's case has been challenged on appeal. From the available materials on record, it could be deduced that it has reached

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finality.

171. In Gangadhara Palo v. Revenue Divisional Officer, reported in (2011) 4 SCC 602, at Paragraphs 5 and 6, the Apex Court held as follows: “5. We regret, we cannot agree. In our opinion, it will make no difference whether the review petition was filed in the High Court before the dismissal of the special leave petition or after the dismissal of the special leave petition. The important question really is whether the judgment of the High Court has merged into the judgment of this Court by the doctrine of merger or not. 6.

When this Court dismisses a special leave petition

by giving some reasons, however meagre (it can be even of just one sentence), there will be a merger of the judgment of the High Court into the order of the Supreme Court dismissing the special leave petition. According to the doctrine of merger, the judgment of the lower court merges CIVIL APPEAL NO.5280 OF 2006 into the judgment of the higher court. Hence, if some reasons, however meagre, are given by this Court while dismissing the special leave petition, then by the doctrine of merger, the judgment of the High Court merges into the judgment of this Court and after merger there is no judgment of the High Court. Hence, obviously, there can be no

179

review of a judgment which does not even exist.”

172. Files produced by the Bar Council of India shows that Item No.36/2009 (LE) is to consider clarifications sought for by various Universities/law colleges, regarding the implementation of the new revised rules of the Bar Council of India in Part IV relating to “Standards of Legal Education and Recognition of Degrees in Law” for the purpose of enrollment as advocates. 1.Letter dated 18.2.2009 received from the Principal, J. C.C. Law College, Kolkata regarding accreditation system. 2.Letter dated 5/5/2009 received from the Head, Deptt of Laws, Gurunanak Dev University, Amritsar, Punjab regarding Schedule II of the new rules of the Legal Education. Consideration of the above matter has been deferred for the next meeting of the Legal Education Committee.

173. Regarding the eligibility for admission to law course in respect of age, it has been brought to the notice of the Legal Education Committee that various writ petitions have been filed in different High Courts such as Mumbai High Court, Andhra Pradesh High Court, etc., challenging the rules of the Bar Council of India prescribing upper age limit for admission to law course and therefore the Legal Education

180

Committee was of the view that a Transfer Petition under Article 139A may be moved before the Hon'ble Supreme Court, requesting to transfer the Writ Petitions pending in different High Courts on the issue of age limit imposed by the Bar Council of India to the Hon'ble Supreme Court to decide the matter.

174. From the above, it could be deduced that the matter regarding the eligibility for admission to law course in respect of age, has been discussed only by the Legal Education Committee of the Bar Council of India and decided as stated supra.

175. On the Action Taken Report, in Item No.36/2009 (LE), the Joint Secretary, Bar Council of India in its Action Taken Report dated 27.05.2009, has recorded that clarifications have been sent to the Universities as well as to the colleges.

176. In the subsequent meeting held on 26.06.2009, of the Legal Education Committee of the Bar Council of India, Hon'ble Mr.Justice A.P.Mishra, former Judge, Supreme Court of India, and Chiarman, Legal

181

Education

Committee, Bar Council of India has presided over the

meeting. In all, 24

persons have participated. As against Item

No.36/2009,(LE) to consider the clarifications sought by various Universities/law colleges, regarding implementation of the new revised rules of the Bar Council of India, the following is recorded:''Item No.37/2009(LE) once again the subject matter was relating to rule 28 in Schedule III.

Subject discussed and

deliberated are as follows:Seeking Clarification of Rule 2(xi) Chapter I of the Rules

of

the

Legal

Education

Committee

relating

to

“Standards of Legal Education and Recognition of Degrees in Law” for the purpose of enrollment as advocates. 1.Rule 41 envisages “Uniform Identity Number of Students and Faculties for the purpose of building up the Uniform Data of the Faculty and Students of Law.” For this purpose Schedule X of Legal Education Rules be incorporated and issue necessary guidelines (Page -19 and Page 49) for implementing the same. 2.To clarify about the eligibility of candidates for the purpose of taking admission in LL.B courses who has studied in the pattern of 10+1+3. 3.To clarify about the eligibility of candidates for the purpose of enrollment who has studied in the pattern of 10+2+2. 4.Rule 28 in Schedule II regarding Age on Admission

182

prescribed by the Bar Council of India for the purpose of taking admission in three year as well as five year law course. Consideration of above matter has been deferred for the next meeting of the Legal Education Committee.”

177. On 22.08.2009, under the Chairmanship of Hon'ble Mr.Justice A.P.Mishra, former Judge, Supreme Court of India, Chairman, Legal Education Committee, Bar Council of India convened a meeting, in which, 20 members have participated. As regards the age restriction, it is recorded as follows:“4.Regarding the Age on Admission prescribed by the Bar Council of India for the purpose of taking admission in three year as well as five year law course – Since Rule 28 regarding age on admission has been challenged by way of writ petitions in different High Courts and some of the Hon'ble High Courts have stayed the operation of Rule 28 in Part IV Rules of the Bar Council of India. It is made clear that the operation of the stat order will be applicable only in the jurisdiction of the concerned High Court wherever stay has been granted and where no stay is granted by the High Court, Rule 28 regarding age on admission will prevail.”

183

178. Perusal of the minutes of the meetings held by the Legal Education Committee shows that the subjects pertaining to the implementation of the new rules of the Bar Council of India relating to Legal Education, inspection report, affiliation, prescription of marks, infrastructure, staff, maintenance of teacher pupil ratio etc have been considered.

179. On 19.12.2009, a Search committee of the Bar Council of India convened the meeting. The Hon'ble Mr.Justice A.P.Mishra, former Judge, Supreme Court of India, and Chiarman, Legal Education Committee, presided over the meeting and four other persons have participated.

The meeting was called to implement the directions

issued by the Hon'ble Supreme Court of India in their order dated 14.12.2009 in SLP(Civil)No.22337/2008 (Bar Council of India vs. Bonnie Foi Law College and others).

The record states that the

following steps would be taken. a.The preparation of parameters and list of experts for inspection of law schools and law college would be finalized by 31st December, 2009.

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b.The Directorate of Legal Education would be operationalised by 31st December 2009. c.The Directory of law schools and law colleges will be prepared by 15th january 2010. d.The Institutions which have not been inspected will be inspected by 31st January 2010. e.The details of data base of law schools and law colleges would be prepared by 31st December 2009. f.Meeting of the National Legal Knowledge Council will be held on 1st February, 2010. g.Bar Examination will be conducted for new advocates after enrollment to obtain certificate of practice to commence practice.

The said examination would be

conducted in July/August 2010.”

In the said Search Committee meeting, it appears that there was no discussion regarding the matter pertaining to age.

180. Meeting of the Legal Education Committee of the Bar Council of India, has been held on 30.04.2010 in which, Item No.42/2010 was to consider the judgment passed in W.P.No.5274/2009 in the matter of degree obtained in M.A Open University System.

185

181. Legal Education Committee has considered the judgment passed in Writ Petition No.5274/2009 in the matter of degree obtained in M.A. Open University System. After consideration, the Committee has authorised Shri Gopal Subramanium, Solicitor General of India, Hon'ble Chairman Bar Council of India to examine the matter. Further, office has been directed to put up all the details before the Chairman, Bar Council of India.

182. Files produced by the Bar Council of India shows that in a meeting convened on 12.09.2008 by resolution No.110/2008, the Bar Council of India has resolved to accept the revised rules on “Standards of Legal Education and Recognition of “Degrees” as recommended by the Legal Education Committee of the Bar Council of India which prepared the said rules with the help of the Sub-Committee in this regard. The Bar Council has recorded that the new set of rules will come into force w.e.f 2009-2010. A copy of the rules has been enclosed to this minutes as Annexure-”H”.

183. Files produced by the Bar Council of India further shows that

186

the recommendation of the Legal Education Committee in the meeting held on 13.08.2010 has been approved by the Executive Committee of the Bar Council of India by resolution No.109/2008 resolving that the recommendation of the Legal Education Committee made at its meeting held on 13th September, 2008 and as approved. 184. Item No.105/2008 is to consider and approve the revised rules of Legal Education and it was resolved as under:“Due to Globalisation, international trade and commerce has increased and information technology has advanced by leaps

and

bounds,

the

world

is

undergoing

a

total

transformation in the field of science and technology, trade and commerce

and

spread

of

information

technology

have

necessitated a revision in the curriculum of LL.B course to bring it in tune with the need of the hour. Under the Charimanship of Hon'ble Mr.Justice A.P.Mishra, Former Judge of the Supreme Court and Chairman of the Legal Education Committee was constituted to look into the matter and to frame a new set of rules and appropriate curriculum for LL.B course.”

185. Files pertaining to the minutes of the General Council meeting of the Bar Council of India produced before this Court shows that on 14.09.2008, Bar Council of India has convened a meeting. Shri Suraj

187

Narain Prasad Sinha, presided over the meeting and 18 others participated.

186. In the meeting of the Legal Education Committee of the Board of India held on 16.04.2011 and 17.04.2011, the Hon'ble Mr. Justice A.P.Misra, Former Judge of the Supreme Court of India and many other Members of the said Committee, were present. The details of the deliberations and the decisions taken, are find in the typed set of papers. Inter-alia, the Legal Education Committee was resolved as follows: “We may also inform the State Bar Council that after elaborate consideration of the various issues involving legal education including the administration/mal administration of the University/centers of legal education, that we have considered it appropriate that the rules framed by the Bar Council of India (Part IV) namely Rules of Legal Education 2008 must be strictly implemented. The scheme of these rules contemplate that it is the University which confers a law degree which must play a primary role of satisfying the Bar Council of India that its degree entitles the holder of the degree for enrolment at the bar. The enrolment oat the bar is admittance to a legal profession marked by nobility,

188

fearlessness and independence. The profession symbolizes the high ideals of Indian Constitution.”

187. Decisions taken by the Legal Education Committee to implement the Rules of Legal Education, 2008, is not disputed. The minutes enclosed in the typed set of papers, filed by the petitioner, also shows that all the matters, pertaining to education, have been discussed and decided only by the Legal Education Committee.

188. An emergency General Council meeting of the Bar Council of India has been held on 09.08.2013 wherein 13 persons including the Chairman of the Bar Council of India have participated. Item No.240/2013 To consider the strong demand by the State Bar Council of Rajasthan regarding the power of inspection of the colleges.

Resolution has been passed, regarding the inspection of colleges involving the State Bar Councils.

189. Item No.242/2013 deals with an issue to consider the office note regarding amendment of rule VI, Chapter III, Part 4 of the Rule of

189

Bar Council of India and transfer petition filed in the matter of Bar Council of India vs. .Haridas. Resolution No.170/2013 After consideration, Council constitute a Committee consisting of Mr.Apurba Kumar Sharma, Mr.S.Prabakaran and Mr.Nilesh Kumar. The Committee is requested to examine the matter and submit its report within two weeks.

190. Item No.244/2013 is to consider and discuss the report submitted by Hon'ble Member, Shri S.Prabakaran regarding clause 28 of Legal Education Rules, 2008 (maximum age of admission in Law Courses) Resolution No.171/2013 “The Hon'ble Member Mr.S.Prabakaran has submitted his report regarding clause 28, Schedule III of Legal Education Rules, 2008. Clause 28 is ultra vires the provisions of Sections 7(1)(h) and (I), 24(c)(iii) and (iiia) or Section 49(1)(af)(ag) and (d) of the Advocates Act. As such the Council resolves to request the Hon'ble Apex Court to consider the rule prescribed by Bar Council of India in clause 28, Schedule II of Legal Education Rules, 2008, and lay down the fresh guideline on the issue. The matter is sub-judice. The learned Advocate on record should be instructed to make a request to the Hon'ble Apex Court to

190

lay down proper guidelines in this regard.

Bar Council of

India is ready to be abide by the guidelines and/or to enhance the maximum age limit for admission in law courses.”

191. In Resolution No.173/2013, the Council resolves to involve the Hon'ble Members of State Bar Councils in all the inspections of all the existing Law Colleges/universities in the country. After setting out the number of State Bar Councils, the Bar Council of India has decided that the report of the inspection should be sent to the Bar Council of India for its placement before the Legal Education Committee headed by one former Hon'ble Judge of the Supreme Court and other members of the Legal Education Committee, Chief Justice of High Court, Attorney General of India, Solicitor General of India, Union Law Secretary, Vice Chancellor of National Law University, Bangalore, National Law School, Delhi, retired Judge of High Court, other academicians, Jurists like Mr.P.P.Rao, Mr.K.K.Venugopal besides five members of Bar Council of India. Bar Council of India has also resolved that the power to grant or refuse the approval of law colleges lies with Legal Education Committee. This resolution of bar Council of India shall be placed before the Legal

191

Education Committee for ratification.

192. Thus on 09.08.2013, the Bar Council of India has taken two decisions regarding Legal Education Rules and role of the Committee. In Resolution No.173/2013, the Bar Council of India has taken a decision to place the report of the inspection reports before the Legal Education Committee, on the ground that the power to grant or refuse approval of law colleges lies with the Legal Education Committee and the resolution of the Bar Council of India shall be placed before the Legal Education Committee for ratification.

193. At this juncture, this Court deems it fit to state the Bar Council of India, has categorically resolved to accept the revised rules on Standards of Legal Education as recommended by the Legal Education Committee, by the Bar Council of India, which prepared the said rules with the help of a sub committee. At many pages in the files, there is indication of forming Sub-Committees. There is no reason in the counter affidavit of Bar Council of India, as to how, the One Man Committee's report has been considered, without reference or discussion with the

192

Legal Education Committee.

194. It could be seen from the above, all along the Legal Education Committee has deliberated various issues, concerning legal education, including the upper age limit and taken decisions, and the Bar Council of India in its resolution No.244/13 was even prepared to accept the guidelines, if any, fixed by the Hon'ble Supreme Court. At the risk of repetition, Resolution No.244/13, is extracted: Resolution No.171/2013 “The Hon'ble Member Mr.S.Prabakaran has submitted his report regarding clause 28, Schedule III of Legal Education Rules, 2008. Clause 28 is ultra vires the provisions of Sections 7(1)(h) and (I), 24(c)(iii) and (iiia) or Section 49(1)(af)(ag) and (d) of the Advocates Act. As such the Council resolves to request the Hon'ble Apex Court to consider the rule prescribed by Bar Council of India in clause 28, Schedule II of Legal Education Rules, 2008, and lay down the fresh guideline on the issue. The matter is sub-judice. The learned Advocate on record should be instructed to make a request to the Hon'ble Apex Court to lay down proper guidelines in this regard.

Bar Council of

India is ready to be abide by the guidelines and/or to enhance the maximum age limit for admission in law

193

courses.”

195. When the Bar Council of India, in its Resolution No.171/2013, has resolved to request the Hon'ble Apex Court to consider the rule prescribed by Bar Council of India in clause 28, Schedule II of Legal Education Rules, 2008, and lay down the fresh guideline on the issue and by such resolution, the Bar Council of India has also resolved to instruct the learned Advocate on record, to make a request to the Hon'ble Apex Court to lay down proper guidelines in this regard and further resolved to abide by the guidelines and/or to enhance the maximum age limit for admission in law courses, quite contrary to the said resolution, the Bar Council of India appears to have decided to accept of the report of Mr.S.Prabakaran, Member, without any consultation with the Legal Education Committee of the Bar Council of India.

196. As per the Law Commission Reports, taken note of, by the Three Member Committee, appointed by the Hon'ble Apex Court in Bonnie FOI Law College's case (cited supra), there should be a consultative process, as extracted supra. The Bar Council of India has also resolved to accept the Three Member Committee's report, as stated

194

supra.

197. From the perusal of the files, submitted by the Bar Council of India, there was an appointment of a Three Member Committee for the abovesaid purpose. Here again, we are not able to deduce, as to whether, the Bar Council of India has passed any specific resolution, nominating Mr.S.Prabhakaran, to go into the issue.

198. It cannot be disputed that the rules have been framed, on the recommendation of the Legal Education Committee, which prepared the rules, with the help of a Sub Committee. Thus, while framing the Rules, the Legal Education Committee had its effective role.

199. Perusal of the files indicate that without any remarks from the Legal Education Committee and deliberation with such Committee, which framed the rules, the Bar Council of India in Resolution No.171/2013 has decided to consider and discuss the report submitted by the Member Shri.S.Prabakaran regarding clause 28 of the Legal Education

195

Rules, 2008 (maximum age of admission in Law courses). There is no specific reference in the file, as to how the report came to be submitted.

200. Though the Bar Council of India in its counter affidavit to this writ petition, has stated that One Man Committee was constituted for the purpose of considering the issue relating to fixing the age limit for admission to law degree courses in the law colleges and the Universities, it is not known under what circumstances Shri.S.Prabakaran, was appointed as One Man Committee and submitted his report. There is nothing to indicate that the Bar Council of India has constituted a One Man Committee, by passing any resolution to call for any report from Mr.S.Prabakaran regarding clause 28 of Legal Education Rules, 2008 (maximum age of admission in Law courses).

201. As stated supra, Item No.243/2013 is to consider the office note regarding amendment of rule VI, Chapter III, Part 4 of the rules of the Bar Council of India and transfer petition filed in the matter of Bar Council of India vs. K.Haridas.

By resolution No.170/2013, the Bar

Council of India has constituted a Committee consisting of Mr.Apurba

196

Kumar Sharmar, Mr.S.Prabakaran and Mr.Nilesh Kumar. The Committee is requested to examine the matter and submit its report within two weeks. It is a Three Member Committee. But the counter affidavit of the Bar Council of India states that a One Man Committee has been appointed.

202. Thus when the Bar Council of India has considered the office note regarding the amendment of a rule, stated supra, a committee, consisting of Three Member Committee has been constituted to examine the matter and submit a report. On the contra, as stated supra, we are not able to find out, as to whether, there is any resolution passed by the Bar Council of India, for nominating Mr.S.Prabakaran to discuss and consider the issue regarding clause 28. No specific date is mentioned even in the counter affidavit filed by the Bar Council of India.

203. Thus going through the minutes of the meetings of the Bar Council of India held on various dates and recorded in the Files, we are unable to find out as to when the General Council of the Bar Council of India has decided to nominate a One Man Committee. Though the Bar Council of India in its resolutions has referred to the constitution of sub

197

committees or individual Member/Members, in the existing committees for a specific purpose, there is no reference to the constitution of One Man Committee, to review clause 28 (maximum age in rules of legal education 2008).

Files placed before this Court do not even refer or

state, Mr.S.Prabakaran as the One Man Committee. On the other hand, from the perusal of Resolution No.171/2008 under Item No.244/2013, it could only be inferred that Mr.S.Prabakaran, has submitted report dated 29.07.2013, which has been considered by the General Council of the Bar Council of India.

204. From the files of the Bar Council of India, the only inference that could be made by us is that Mr.S.Prabakaran, Member, has submitted a report, regarding clause 28 of Legal Education Rules 2008. There is no recommendation of the Legal Education Committee to the General Council of the Bar Council of India, to consider the issue of maximum age. As pointed out, when there was an inspection report involving the State Bar Councils, the Bar Council of India has specifically resolved to place such report before the Legal Education Committee, as the power to grant or refuse the approval of law colleges lies with the Legal Education

198

Committee. Prescription of age, for admission, cannot be said to be outside the purview of the Legal Education Committee of the Bar Council of India, when the very Rules of Legal Education, 2008, have been framed on the recommendation of the Legal Education Committee, which prepared the rules with the help of Sub-Committee.

205. In the Meeting, Office Note on clarification of withdrawal of Clause 28 has been discussed. As observed earlier, there is neither a Office Note nor a resolution appointing Mr.Prabhakaran, as the One Man Committee. General Council of the Bar Council met on 31.08.2013. 14 members attended the meeting. Item No.266/2013 is as follows:“To consider the office note seeking clarification as to whether after withdrawal of Clause-28, Schedule-III of Rule 11

of

the

Rules

of

Legal

Education,

2008,

the

Universities/colleges imparting legal education can take admission in law courses without age restriction in spite of pendency of SLPs/TP in the Hon'ble Supreme Court.” “Resolution No.200/2013 The office note seeking clarification as to whether, after withdrawal of Clause-28 Schedule III of rule 11 of the Rules of 'Legal Education' 2008, the Universities/Colleges imparting Legal Education can take admission in Law Courses

199

without age restriction in spite of pendency of SLPs/TP in the Hon'ble Apex Court, is considered by the Council.

After

consideration, the Council resolves to clarify that since Clause-28, Schedule III of rule 11 of the Rules of Legal Education, admission

2008, in

law

prescribing courses

age

has

restriction

been

to

withdrawn,

take the

colleges/universities imparting legal education are allowed to take admission in 5 year/3 year courses without any age restriction. The office is directed to notify the withdrawal of this clause in the Gazette of India immediately. Office is further directed to move an application before Hon'ble Supreme Court with a prayer to withdraw SLP as well as Transfer Petition filed by the Bar Council of India in the matter of clause-28, Schedule-III of rule 11 of the Rules of Legal Education, 2008.”

206. On 24.08.2013, the General Council of the Bar Council has convened a meeting with 11 members including the Chairman of the Bar Council of India, “Item No.248/2013 is confirmation of the minutes of the Legal Education Committee meeting of the Bar Council of India held on 24.08.2013. Resolution No.183/2013 is that the minutes of the Legal Education Committee meeting held on 24.08.2013 be

200

and is hereby confirmed.”

207. Thus, from the above, there is an indication that the decision taken by the Legal Education Committee has been considered by the General Council of the Bar Council of India and it has been accepted. With regard to Resolution No.171/2008 under Item No.244/2013, report dated 28.07.2013 submitted by Mr.S.Prabakaran, Bar Council of India has been accepted. On 29.09.2013, General Council of the Bar Council of India has convened a meeting with 12 members including Chairman. Item No.331/2013 is to consider the modified report submitted by the Hon'ble Member Mr.S.Prabhakaran along with the note in regard to Clause 28, Schedule-III, Rule-11 of the Rules of Legal Education, 2008. Resolution No.231/2013 passed by the Bar Council of India is as follows:“Council has considered the Seceretary's Note as well as modified

report

submitted

by

the

Hon'ble

Member,

Mr.S.Prabakaran in regard to Clause 28, Schedule-III, Rule-11 of the Rules of Legal Education-2008.

The

modified report be

Gazeeted in Gazette of India. Earlier report dated 28.07.2013 along with resolution which was published in Gazette of India vide: Extra ordinary Part-III, Section 4, September 28, 2013 stands withdrawn.”

201

208. On 29.12.2013 a meeting has been convened by the General Council of the Bar Council of India with 12 members including the Chairman of the Bar Council of India.

Item No.387/13 is to

consider the letter dated 15.12.2013 received from Mr.S.Prabakaran, Co-Chairman, Bar Council of India requesting for withdrawing the resolution and Gazzette publication regarding age restriction (Rule-28 notification) Consideration of the abovesaid matter is deferred for the next General Council meeting. Letter, dated 15.12.2013, is not placed before us. When the report, dated 28.07.2013, submitted by Mr.S.Prabakaran and the modified report, are stated to have been accepted, in the absence of production of the said letter, dated 15.12.2013, we are unable to deduce, as to what, Mr.S.Prabakaran, meant for withdrawal of the resolution and Gazettee Publication. At this juncture, it should be noted that Bar Council of India has notified the impugned Gazette on 29.08.2013.

209. On 14.04.2014, the General Council of the Bar Council of India has convened a meeting with 15 members including the Chairman of

202

the Bar Council of India. Item No.387/2013 is to consider the letter dated 15.12.2013 received from Mr.S.Prabakaran, Co-Chairman, Bar Council of India requesting for the resolution and Gazettee publication regarding age restriction (Rule-28 notification). “Resolution No.64/2014, the Council has considered and discussed the matter thoroughly. After thorough consideration, the Council thinks it proper to bring this matter to the notice of Hon'ble Supreme Court in SLP(C) 26958-26962/2013 in which the Council has challenged the order passed by High Court of Punjab & Haryana. As per the report of the office, the SLP is still pending before the Hon'bel Apex Court. The matters listed in today's agenda (i.e Item No.75/2014) by which the Bar Council of Tamil Nadu has rejected two transfer applications on the ground of clause 28 of Schedule-III relate to the same resolution and the decision of the Division Bench of Punjab & Haryana High Court. After thorough consideration, it is resolved that the Lawyer appearing on behalf of the Bar Council of India should be requested to get the hearing of the matter expedited and to get it decided within a period of one month. It is also resolved that in the meantime, the State Bar Council of Tamil Nadu may be reminded of the resolution of the Bar Council of India.''

210. The contention of the learned counsel for the petitioner that

203

the Bar Council of India has accepted the report of the Legal Education Committee on the working of the Law Commission regarding admission of the students, in its letter, dated 03.08.2000, cannot be disputed.

211. It could be deduced from the above, that the Three Member Committee reports were directed to be placed both before the Bar Council of India and the Legal Education Committee and accordingly, the reports have been accepted. Thus, it could be seen in the matter of promotion and laying down the standards of legal education, the role of Legal Education Committee, has been recognised and emphasised by the Hon'ble Apex Court and without consultation of the Legal Education Committee, no changes should have been made in the Bar Council of India Rules.

212. The contention of the learned counsel for the petitioner that there is a discrimination between five year law course and three year law course, in the matter of prescribing upper age limit, for admission to B.L. Five year Degree Course and B.L. Three Year Degree Course, is not answered in the counter affidavit.

204

213. It is the contention of the learned Advocate General that Dr.Ambedkar Law University is a creature of a Statute, established by the Act of State Legislature and as per Section 43(1)(b) of the Tamil Nadu Dr.Ambedkar Law Univerity Act, 1996, the University can admit candidates, who fulfill the conditions prescribed therein. He has also submitted that the Syndicate has passed a resolution, to adopt the qualifications

and

norms

prescribed

by

the

Government

in

G.O.Ms.No.194, Law (LS) Department, dated 03.06.2015. According to him, when the resolution of the Syndicate, dated 03.06.2015, has not been challenged, the prayer to quash the admission notification, is liable to be rejected.

214. Entry 66 List 1 under the XIIth Schedule provides for Coordination and Determination of Standards in Higher Education. Entry 25 of List III deals with broader subject, “Education”. Needless to state that as per Section 254 of the Constitution of India, If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any

205

provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause ( 2 ), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.

215. Perusal of G.O.Ms.No.194, Law (LS) Department, dated 03.06.2015, shows that the Government have only adopted the norms

206

prescribed by the Bar Council of India, a creature of Advocates Act, 1961, prescribing the upper age limit for three year degree course and therefore, the contention of the learned Advocate General, on the basis of the State Act, cannot be countenanced.

216. In Preeti Srivastava (Dr.)& Anr vs State Of Madhya Pradesh reported in 1999 (7) SCC 120, at Paragraphs 36 and 52, the Hon'ble Apex Court, held as follows: “36. It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List-I. For example, a State may, for admission to the post-graduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List-I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can, and do have an adverse effect on the standards of education in the institutes of higher education. Standards of

207

education in an institution or college depend on various factors. Some of these are: (1) The calibre of the teaching staff; (2) A proper syllabus designed to achieve a high level of education in the given span of time; (3) The student-teacher ratio; (4) The ratio between the students and the hospital beds available to each student; (5) The calibre of the students admitted to the institution; (6) Equipment and laboratory facilities, or hospital facilities for training in the case of medical colleges; (7) Adequate accommodation for the college and the attached hospital; and (8) The standard of examinations held including the manner in which the papers are set and examined and the clinical performance is judged.

217. In the light of the discussion and decisions, we are of the view that Clause 28 under Schedule-III to Rule 11 of the Rules of Legal Education, 2008, has been amended, without following the provisions of the Act and the Rules made thereunder. The Government of Tamil Nadu has only followed the decision of the Bar Council of India and G.O.(Ms)No.194,

Law

(LS)

Department,

dated

03.06.2015

and

208

consequently, the Regisrar, Ambedkar University, has issued an admission notification.

218. For the reasons, stated supra, the impugned notification of the Bar Council of India, dated 28.09.2013 and G.O.(Ms)No.194, Law (LS) Department, dated 03.06.2015 are quashed and the consequential admission notification of the Registrar, Dr.Ambedkar Law University, Chennai, dated 04.06.2015, is quashed, insofar as three year degree course is concerned.

219. Hence,

Writ Petition is allowed. No costs. Consequently,

connected Miscellaneous Petition is also closed.

Index : Yes/No Internet : Yes/No skm/NB2

(S.M.K. J.,) (V.M.V. J.,) 07.08.2015

209

S.MANIKUMAR, J. AND V.M.VELUMANI, J.

220. After the pronouncement of the judgment, it is brought to the notice of this Court that as per the impugned admission notification, dated 04.06.2015, the last date for publication of the ranking list to three year law decree course is 31.07.2015. Inasmuch as the aforesaid notification is struck down, the Registrar, Tamil Nadu Ambedkar University, Chennai, is directed to issue a fresh notification, extending the time for admission to three year law degree course, in Tamil Nadu Ambedkar University, Chennai as well as other Government Law Colleges, for the academic year 2015-16. Admission process, selection, finalisation of results and publication thereof, should be completed within a period of one month, from the date of receipt of a copy of this order.

Index : Yes/No Internet : Yes/No skm/NB2

To

(S.M.K. J.,) (V.M.V. J.,) 07.08.2015

210

1. The Secretary, Ministry of Union Law and Justice, Government of India, New Delhi. 2. The Secretary, Ministry of Law and Justice, Government of Tamil Nadu, Chennai. 3.The National Legal Knowledge Council, New Delhi. 4. The Secretary, Bar Council of India, 21, Rouse Avenue Institutional Area, Near Bal Bhavan, New Delhi. 5. The Chairman, Legal Education Committee, Bar Council of India, 21, Rouse Avenue Institutional Area, Near Bal Bhavan, New Delhi. 6. The Chairman, Bar Council of Tamil Nadu and Pondicherry, High Court Campus, Chennai - 600 104. 7. The Secretary, Union Grants Commission, Bagadur Shah Zafar Marg, New Delhi - 110 002. 8. The Registrar, Dr.Ambedkar Law University,

211

Greames Road, Chennai. 9. Thiru S.Prabakaran, A Hon'ble Member of One Man Committee, constituted to reconsider the age restriction of Clause 28 of Legal Education Rules, 2008, Bar Council of India, 21, Rouse Avenue Institutional Area, Near Bal Bhavan, New Delhi.

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S.MANIKUMAR, J. , AND V.M.VELUMANI, J., skm/NB2

W.P.(MD)No.9533 of 2015 & M.P.(MD) Nos.1 to 3 of 2015

07.08.2015