IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 16.11.2006 Coram:- The Hon'ble Mr. Justice P.SATHASIVAM and The Hon'ble Mr. Justice S.TAMILVANAN Writ Petition No.30712 of 2006 and M.P. No.1 of 2006 M.Radhakrishnan ... Petitioner-in-Person vs. 1. The Secretary, The Bar Council of India, AB/21, Lal Bahadur Shastri Marg, New Delhi 110 001. 2. The Secretary, The Bar Council of Tamil Nadu, High Court Campus, Chennai 600 104. ... Respondents Petition under Article 226 of the Constitution of India for the issuance of a writ of declaration declaring Rule 8(A) of the Enrolment Rules of Bar Council of Tamil Nadu void as stated therein. Mr.M.Radhakrishnan : Petitioner-in-Person For Respondent-1 : Mr.B.Balaji For Respondent-2 : Mr.K.Venkatakrishnan (Judgment of the Court, delivered by P.SATHASIVAM, J.) - - - - - Thiru.M.Radhakrishnan, who is a practising Advocate, has filed the above Public Interest Litigation, for the issuance of a writ of declaration to declare Rule 8(A) of the Enrolment Rules of Bar Council of Tamil Nadu as void. 2. In the affidavit filed in support of the above petition, it is stated that he joined the Bar on 8th January, 1986, and practised at Ahmedabad from January 1986 to June 1988. Since July, 1988, he has been appearing before the Subordinate Courts, Tribunals and this https://hcservices.ecourts.gov.in/hcservices/ Court. According to him, he approached this Court by way of this Writ Petition (Public Interest Litigation) in the larger interest of administration of justice. The first respondent-Bar Council of India, on 25.09.1993, framed Rule-9 in Chapter III of Part VI of the Bar Council of India Rules, stipulating that a person, who has completed the age of 45 years on the date on which he submits his application for his enrolment as an advocate to the State Bar Council, shall not be enrolled as an Advocate. The Supreme Court of India, in Indian Council of Legal Aid & Advice and others v. Bar Council of India and another ((1995) 1 SCC 732) declared the said Rule as unconstitutional. Similar Rule, viz., Rule 8(A) of the Enrolment Rules of Bar Council of Tamil Nadu, was framed by the 2nd respondent/Bar Council of Tamil Nadu by means of Resolution No.186 of 2006, dated 17.06.2006, and the said Rule became effective from 2nd August, 2006, with the approval of the first respondent. The said Rule is contrary to the law laid down by the Supreme Court in Indian Council of Legal Aid case (cited supra) and violative of Article 14 of the Constitution for the reasons stated by the Supreme Court in paragraph No.13 of the said Case Law. In the additional affidavit, the petitioner has stated that as per Rule 8(A), those who have got enrolled as Advocates on or after 2nd August 2006 in other State Bar Councils after their attainment of 45 years of age would forever be debarred from applying for transfer of their enrolment to respondent-2 / Bar Council of Tamil Nadu. This provision contained in Rule 8(A) would be violative of Articles 14, 19 (1)(g) and 21 of the Constitution of India. 3. R-2 has filed counter affidavit also on behalf of R-1, stating that the petitioner, being an Advocate, is not an aggrieved person, hence, the present Writ Petition is not maintainable. Similar Rule brought in by the Bar Council of India was quashed by the Supreme Court only on the ground that under Section 28(2)(d) of the Advocates Act, only State Bar Councils can prescribe conditions subject to which a person may be admitted as an Advocate and not the Bar Council of India and consequently, the Rule was struck down. The Supreme Court further held that the Bar Council of India has no Rule making power in this regard being an Apex Body and that the enrolment of Advocates is within the domain of State Bar Councils. Due to compelling circumstances and to preserve the image of the profession and to protect the interest of the members of the Legal profession, in exercise of the Rule-making power available under Section 24(e) and 28 (2)(d) of the Advocates Act, the Bar Council of Tamil Nadu has passed Rule-8(A). Several candidates, even without any basic or formal education, upon attaining a particular age, are allowed to directly appear in one sitting to obtain a Masters Degree and, thereafter, such candidates even proceed to seek admission in law colleges and secure a Law Degree even while in employment and after their retirement from service invariably apply for an enrolment as an Advocate at the age of 58 years to make the noble profession as their pastime. The profession https://hcservices.ecourts.gov.in/hcservices/ has become highly competitive and only very few of them are successful and many of the Advocates are unable to thrive in the profession and finding it difficult for their day-to-day livelihood. Similar to Bar Council, other Bodies like Medical Council of India (MCI) and All India Council for Technical Education (AICTE) have prescribed maximum age limit of 21 years for entering those educational institutions imparting courses in Medical and Engineering, therefore, no candidate beyond the age of 21 years can aspire to enter any such professional courses and consequently only those who have the ambition of becoming an Engineer or a Doctor can become a professional in those fields. Many persons consider the legal profession as their alternative source of income after retirement from service and / or a side avocation and not a career of ambition and that is the reason why the standard of the legal profession is deteriorating in the present days and there is a threat to the integrity of the profession. In the past, there has been number of complaints of fake law degrees being issued in neighbouring States. In no other profession, entry of a candidate is permitted at the age above 45 years, while so, by entry of such aged persons after their retirement, with the knowledge acquired during the course of their previous employment, they gain undue advantage as against those who are wedded to this legal profession. There are so many practical disadvantages faced by the Advocates due to entry of retired persons at the age of 60s and even above. Keeping in mind the interest and welfare of the members of the legal profession, the second respondent reintroduced the rule, fixing an upper age limit for the valid reasons and objects. The right to practice as an Advocate is not a fundamental right but a statutory right provided one satisfies the prescribed conditions that are laid down by the statutory body that regulates and governs the legal profession. If no cut off age is fixed for entry into the profession, there would be a constant increase in the ratio of enrolment of candidates after retirement and a situation will be reached to threaten the integrity of the legal profession. Hence, merely because the Advocates Act prescribes completion of 21 years as minimum age limit for entering into the profession in Section 24(1)(b) of the Advocates Act, no inference can be drawn that the Parliament in its wisdom had not thought fit to stipulate an upper age limit while prescribing a minimum age limit. Prescribing an upper age limit for being enrolled as an Advocate is not a disqualification as found in Section 24-A of the Advocates Act. The second respondent has also filed additional counter affidavit reiterating their earlier stand. It is further stated that most of the Law Colleges in some parts of the country admit students into Law Course and award Law Degree without insisting for regular attendance and classes. In cases where the Law Degree is of any other State other than Tamil Nadu, the 2nd respondent verifies the genuineness and the fact whether the candidate underwent the course by actual attendance and only thereafter, enrols such candidates. On account of this shortcoming even persons with unclean antecedents acquire legal qualification and enter into the profession leisurely https://hcservices.ecourts.gov.in/hcservices/ according to their convenience and such persons are even dominating the Bar Associations, which ultimately affects the reputation of the profession. Due to the entry of undesirable elements into this profession, inducement for frequent strike and criminalisation of the profession is not far away. It is stated that there is no discrimination as both categories are not similarly placed, as the first candidate already enrolled but later took up job or entered any other gainful employment but when reverting to practice after crossing the age of 45 certainly is on better footing than the second candidate who had either acquired law qualification during the course of his employment or having acquired the law qualification without enrolling as Advocate taking up employment is on an entirely different footing and these two category of persons are not similarly placed and therefore, there will be no discrimination at all. The restriction imposed by the impugned Rule is a reasonable one as enunciated in Article 14 of the Constitution of India. 4. In the light of the above pleadings, we heard Mr.M.Radhakrishnan, petitioner appearing in person; Mr.B.Balaji and Mr.K.Venkatakrishan, learned counsels for R-1 and R-2 respectively. 5. The Advocates Act, 1961, provides for an autonomous Bar Council in each State and an All India Bar Council consisting mainly of the representatives of the State Bar Councils. Under the Act, a State Bar Council is to enrol qualified persons as Advocates and prepare a roll of advocates practising in the State and thereafter, a common roll of Advocates for the whole of India is to be prepared by the Bar Council of India. The Advocates whose names are entered in the common roll would be entitled as of right to practise in all the courts in India including the Supreme Court. Under the Act, a State Bar Council has been empowered to enrol qualified persons as Advocates on its Roll. The State Bar Councils are required to frame Rules for the purpose but they do not have effect unless they are approved by the Bar Council of India. 6. Chapter-III of the Act deals with Admission and Enrolment of Advocates. As per Section-17, State Bar Councils are to maintain a roll of Advocates. Section-18 speaks about transfer of name from one State roll to another. Amongst other Provisions, Section-24 is relevant, " 24. Persons who may be admitted as advocates on a State roll.-- (1) Subject to the provisions of this Act, and the rules made thereunder, a person shall be qualified to be admitted as an advocate on a State roll, if he fulfills the following conditions, namely:-- https://hcservices.ecourts.gov.in/hcservices/ (a) he is a citizen of India: Provided that subject to the other provisions contained in this Act, a national of any other country may be admitted as an advocate on a State roll, if citizens of India, duly qualified, are permitted to practise law in that other country; (b) he has completed the age of twenty- one years; (c) he has obtained a degree in law -- (i) ..... (ii) ..... (iii)..... (iiia) ... (iv) ..... (d) ..... (e) he fulfills such other conditions as may be specified in the rules made by the State Bar Council under this Chapter; ........" Section-28 gives power to a State Bar Council to make rules to carry out the purposes of Chapter-III. It provides as follows:- " 28. Power to make rules.-- (1) A State Bar Council may make rules to carry out the purposes of this Chapter. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for,-- (a) .......... (b) .......... (c) .......... (d) the conditions subject to which a person may be admitted as an advocate on any such roll; (e) ........... (3) ........... " Section-24 referred to above prescribes the qualification for enrolment as an advocate in a State roll. As per the same, he must be a citizen of India having completed 21 years of age and obtained a degree in law. Further he has to fulfil the conditions specified by the State Bar Council in the rules and also pay the stamp duty and enrolment fee. https://hcservices.ecourts.gov.in/hcservices/ 7. Now, let us consider the legality or otherwise of the impugned provision, viz., Rule-8A of the Enrolment Rules of Bar Council of Tamil Nadu. 8. At the first instance, we intend to look into the impugned rule and the explanation thereto. The Bar Council of Tamil Nadu by Resolution No.186 of 2006 dated 17.06.2006 added Rule 8(A) after Rule 8 of the Enrolment Rules of Bar Council of Tamil Nadu. We extract hereunder the impugned rule, clarification and explanation thereto from the Notice of the Bar Council of Tamil Nadu dated 23.08.2006, " A person who is otherwise qualified to be admitted as an advocate, but is of more than 45 years of age on the date of submission of application for enrolment in the Bar Council shall not be admitted as an Advocate. Further provided that this rule shall not be applicable to any person, whose enrolment application is pending before coming into force of this rule. It is further clarified that provision of this rule shall not be applicable to any advocates already enrolled by any High Court under Indian Bar Council Act, 1926 but intimated under Section 17(1)(a) of the Act, was not received from the concerned advocate. The provisions of this rule shall also apply in case of persons seeking transfer of enrolment to this Bar Council by means of transfer from other State Bar Councils. Explanation:- After the date of coming into force of this Rule, any person enrolling as an Advocate in any other State Bar Council, where there is no age restriction, shall not be entitled to apply for transfer to this State Bar Council. This rule will come into force from the date of approval of the Bar Council of India. " https://hcservices.ecourts.gov.in/hcservices/ 9. Mr.Radhakrishnan, petitioner appearing in person, heavily relied on the decision of the Apex Court reported in 1995 (1) SCC 732 (cited supra). According to him, the said decision covers the issue involved. In the said case, the Supreme Court considered Resolution No.64 of 1993 of the Bar Council of India, dated 22.08.1993, adding Rule-9 in Chapter III of Part VI of the Bar Council of India Rules, which resolution 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 enrolment as an advocate to the State Bar Council shall not be enrolled as an advocate. " The legality and validity of the said Rule was questioned in a batch of Writ Petitions as inconsistent with Article 14, 19(1) (g) and 21 of the Constitution and Section 24 of the Advocates Act, 1961. The Bar Council of India, in the form of a counter affidavit, highlighted that the rationale is that the profession of law being a pious and honourable profession, its main object being service of mankind by serving the system of administration of justice, it is the pious duty of the Bar Council to protect its public image by restricting the inflow of a large number of retired personnel who seek to enter the legal profession solely for additional gains. Such persons are not inspired by lofty ideals of the profession but their only motive is money-making for which they are prepared to stoop to any levels which has a very negative influence on young minds who join the profession after graduation. The Hon'ble Supreme Court after considering the rule-making power of the Bar Council of India under Section 49 of the Act, in paragraph No.8, concluded thus:- " 8. ..... 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. " The Supreme Court also analysed from another angle, viz., whether the said Rule can be saved under any other provisions of the Act. After adverting to Sections-24(1)(e), 49(1) and Chapter III in general, it was concluded thus, " 12. ..... It is difficult to accept the interpretation that all those above the age group of 45 years constitute a class within the scope of https://hcservices.ecourts.gov.in/hcservices/ clause (ag) of Section 49(1) of the Act to permit the Bar Council of India to debar their entry into the profession for all times. In the guise of making a rule the Bar Council of India is virtually introducing an additional clause in Section 24 of the Act prescribing an upper age ceiling of completed age of 45 years beyond which no person shall be eligible for enrolment as an advocate or is inserting an additional clause in Section 24-A of the Act prescribing a disqualification. Viewed from either point of view we are clearly of the opinion that the rule-making power under clause (ag) of Section 49(1) of the Act does not confer any such power on the Bar Council of India. We are unable to subscribe to the view that all those who have completed the age of 45 years and are otherwise eligible to be enrolled as advocates constitute a class or category which can be disqualified as a single block from entering the profession. Besides, as stated above clause (ag) relates to identification and specification of a class or category of persons 'entitled' to be enrolled and not 'disentitled' to be enrolled as advocates. We, therefore, are of the opinion that the impugned rule is beyond the rules making power of the Bar Council of India and is, therefore, ultra vires the Act." The above mentioned findings and ultimate conclusion of the Hon'ble Supreme Court make it clear that the Bar Council of India has no power to impose such unreasonable restriction and the same is beyond its rule making power and therefore ultra vires the Act. Had the Supreme Court stopped with the said conclusion, there would not be any difficulty in accepting the stand of the Bar Council of Tamil Nadu and Bar Council of India that there is no decision/conclusion by the Supreme Court on other aspects, viz., whether the Rule is reasonable or arbitrary and unreasonable. As a matter of fact, after finding that Rule-9 is beyond the rule-making power of the Bar Council of India and ultra vires the Act, the Hon'ble Supreme Court analysed the other aspect viz., whether the said Rule is reasonable or arbitrary and unreasonable. The said discussion is available in para No.13 of the Judgment, which is extracted below:- " 13. The next question is, is the rule reasonable or arbitrary and unreasonable? The rationale for the rule, as stated earlier, is to maintain the dignity and purity of the profession by keeping out those who retire from various Government, quasi-Government and other institutions since they on being enrolled as advocates use their past contacts to canvass for cases and thereby https://hcservices.ecourts.gov.in/hcservices/ bring the profession into disrepute and also pollute the minds of young fresh entrants to the profession. Thus the object of the rule is clearly to shut the doors of the profession for those who seek entry into the profession after completing the age of 45 years. In the first place, there is no reliable statistical or other material placed on record in support of the inference that ex- government or quasi-government servants or the like indulge in undesirable activity of the type mentioned after entering the profession. Secondly, the rule does not debar only such persons from entry into the profession but those who have completed 45 years of age on the date of seeking enrolment. Thirdly, those who were enrolled as advocates while they were young and had later taken up some job in any Government or quasi-Government or similar institutions and had kept the sanad in abeyance are not debarred from reviving their sanads even after they have completed 45 years of age. There may be a large number of persons who initially entered the profession but later took up jobs or entered any other gainful occupation who revert to practise at a later date even after they have crossed the age of 45 years and under the impugned rule they are not debarred from practising. Therefore, in the first place there is no dependable material in support of the rationale on which the rule is founded and secondly the rule is discriminatory as it debars one group of persons who have crossed the age of 45 years from enrolment while allowing another group to revive and continue practice even after crossing the age of 45 years. The rule, in our view, therefore, is clearly discriminatory. Thirdly, it is unreasonable and arbitrary as the choice of the age of 45 years is made keeping only a certain group in mind ignoring the vast majority of other persons who were in the service of Government or quasi-Government or similar institutions at any point of time. Thus, in our view the impugned rule violates the principle of equality enshrined in Article 14 of the Constitution. " It is clear that though the Hon'ble Supreme Court did not choose to go into the larger question, viz., whether Rule-9 is violative of Article 19(1)(g) of the Constitution, undoubtedly, they found that, https://hcservices.ecourts.gov.in/hcservices/ (a) there is no reliable statistical or other material placed on record in support of the inference that ex-government or quasi-government servants or the like indulge in undesirable activity of the type mentioned after entering the profession; (b) the Rule is discriminatory since it does not debar only such persons from entry into the profession but those who have completed 45 years of age on the date of seeking enrolment; and (c) it is unreasonable and arbitrary as the choice of the age 45 years is made keeping only a certain group in mind ignoring the vast majority of other persons. These principles are applicable to the case on hand. 10. Reliance was also placed on a decision rendered by a Division Bench of this Court (consisting of D.RAJU and A.R.LAKSHMANAN, JJ.) in J.Sampath Kumar v. Bar Council of India and another (1995 Writ L.R. 187). The constitutional validity of Rule-9 in Chapter III of Part VI of the Bar Council of India Rules was challenged by a group of petitioners by way of writ petitions. The said Rule was published in the gazette of India on 25.09.1993, disentitling a person who has completed the age of 45 years on the date on which he submits his application for his enrolment as Advocate to the State Bar Council. After referring to the claim of both parties, relevant statutory provisions and rules, the Division Bench concluded that the impugned rule-9 introduced in Chapter III of Part VI is in excess of the rule- making power besides being inconsistent with the provisions of the Act and also renders itself liable to be struck down. The Division Bench, apart from finding that the Rule is beyond the rule-making power of the Bar Council of India, had also gone into the reasonableness in view of Article 14 of the Constitution of India, which discussion runs as follows:- " 16. That apart, this Court further views that the impugned rule cannot be said to be a reasonable restriction in the interest of general public. As noticed supra, apart from the subject being a matter pertaining to a matter of policy for Legislature to declare, the apprehensions of the rule-making authority and the avowed object, which professedly propelled them in making such a rule, does not also appear to be a genuine or a reasonable excuse to justify the unreasonable action. The rule, though has the consequence of permanently disentitling a person, who has attained the age of 45 from getting enrolled, it is not as though such category of persons are completely eliminated. In its operation,