BAR COUNCIL OF INDIA Versus BONNIE FOI LAW COLLEGE & ORS
BAR COUNCIL OF INDIA Versus BONNIE FOI LAW COLLEGE & ORS
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.__969__OF 2023
Arising out of SLP (C) No.22337 of 2008
BAR COUNCIL OF INDIA …PETITIONER/
BONNIE FOI LAW COLLEGE & ORS. …RESPONDENTS
J U D G M E N T
SANJAY KISHAN KAUL, J.
The Advocates Act:
1. The Advocates Act, 1961, (hereinafter referred to as the “said Act”)
was the consequence of a deeply felt need for change in the Judicial
Administration in accordance with the needs of the time in the postindependence era. The Law Commission was assigned the job of preparing
a report on the reform of Judicial Administration. In the meanwhile, the All
India Bar Committee also made recommendations in 1953. This resulted in
the said Act.
2. Chapter II of the said Act deals with the State Bar Councils, Bar
Council of India and their functions.
3. Chapter IV of the said Act confers the right to practice on Advocates,
who are the only recognised class of persons to do so and have their names
entered in the rolls of the State Bar Councils.
4. Section 7 of the said Act provides for functions of the Bar Council of
India, which inter alia includes the disciplinary power, protection powers to
safeguard the interest of the advocates as also the general supervision and
control over State Bar Councils. Further, Section 49 of the said Act refers to
the general powers of the Bar Council of India to make rules.
5. The original dispute between the Bar Council of India and Bonnie Foi
Law College, the respondent college herein, arose on account of the
application of the said college for affiliation to carry on a legal study course.
This Court appointed an inspection team on 29.06.2009, which visited the
respondent college and gave a comprehensive report pointing out
shortcomings in the infrastructure and functioning of the college. On
24.08.2009, the Court laid down certain conditions to be followed by the
respondent college which the college claimed to have fulfilled later.
6. During the course of this matter, a larger question of diminishing
standards of legal education provided at various law colleges in India came
to be noticed vide the order dated 29.06.2009, which resulted in a
Committee being appointed comprising Mr. Gopal Subramanium, then
Solicitor General of India as its Chairman; Mr. M.N. Krishnamani, then
President of the Supreme Court Bar Association; and Mr. S.N.P. Sinha, then
Chairman of the Bar Council of India. The said Committee was requested to
examine issues relating to affiliation and recognition of law colleges, to
identify areas requiring redressal and to address factors impeding the
implementation of existing norms. A report was submitted to this Court on
06.10.2009 (“hereinafter referred to as the Report”).
7. The Report recognised two significant aspects as imperative for
improving standards of legal profession, i.e., firstly, introduction of a bar
examination and, secondly, compulsory requirement of apprenticeship under
a senior lawyer prior to admission to the Bar. It made the following
a. Bar Examination in India: A bar-examination is a precondition for admission to the Bar in most Commonwealth countries.
b. Pre-enrolment training: The requirement of training with a
senior member of the Bar was present even before the enactment of
the said Act, wherein a prospective lawyer was required to ‘train’ in
the chambers for a period of one year, and then appear in an
examination comprising the subjects of civil and criminal procedure.
Thereafter, Section 24(1)(d) of the said Act continued the requirement
of apprenticeship for graduate law students. However, this provision
was omitted by the amending Act 60 of 1973 (hereinafter referred to
as “1973 Amendment”), thereby discontinuing the practice.
The Report also recorded that the 1973 Amendment omitted Section
28(2)(b) of the said Act, which enabled State Bar Councils to frame rules
regarding training and bar examination. In 1994, a High-Powered
Committee on Legal Education recommended the reintroduction of the
requirement for apprenticeship and bar examination and thus, Bar Council
of India (Training) Rules, 1995 (hereinafter referred to as “1995 Rules”)
were framed by the Bar Council of India in furtherance of the mandate of
the High-Powered Committee. However, the 1995 Rules were struck down
by this Court in the judgment of V. Sudeer v. Bar Council of India1
that once express provisions on Sections 24(1)(d) and 28(2)(b) had been
omitted by the statutory amendment, the requirement could not be
reintroduced. The Report also suggested that Bar Council of India’s role as
the primary body for regulating standards of professional legal education
should be reaffirmed.
8. On 14.12.2009, Mr. Gopal Subramanium submitted that the first All
India Bar Examination will be conducted in July-August, 2010, by a
specially constituted independent body consisting of experts of various
disciplines of national stature. The Court directed the Central Government
to ensure that the entire programme framed by the Committee headed by Mr.
Gopal Subramanium was operationalized and further directed concerned
institutions to fully cooperate with the Bar Council of India.
(1999) 3 SCC 176
9. On the proceedings taking the aforesaid course, vide order dated
18.03.2016 (hereinafter referred to as “reference order”), a three-Judges
Bench of the Court opined that the questions which fall for determination in
the present matter are of considerable importance affecting the legal
profession in general and need to be authoritatively answered by a
Constitution Bench. The reference order provided for three questions to be
answered by this Court, as under:
“1. Whether pre-enrolment training in terms of Bar Council
of India Training Rules, 1995 framed under Section 24(3)(d) of
the Advocates Act, 1961 could be validly prescribed by the Bar
Council of India and if so whether the decision of this Court in
Sudeer vs. Bar Council of India & Anr.[(1999) 3 SCC 176]
2. Whether a pre-enrolment examination can be prescribed
by the Bar Council of India under the Advocates Act, 1961.
3. In case question Nos. 1 and 2 are answered in the
negative, whether a post-enrolment examination can be validly
prescribed by the Bar Council of India in terms of Section 49(1)
(ah) of the Advocates Act, 1961.”
10. There was resistance on part of some stake holders to hold the All
India Bar Examination in W.P. (C) No.25 of 2021, W.P.(C) No. 987/2013,
T.C. (C) No. 16/2011, 12/2011, 13/2011, 36/2011, 14/2011, 15/2011,
75/2012, 88/2012, 08/2012, 17/2011, 18/2011 and T.P.(C.) No. 692/2015,
which have been tagged with the present matter.
The case law debated before us:
11. There are three significant judgments whose implication was debated
before us. The first is the judgment of this Court in V. Sudeer2 which
discussed whether the 1995 Rules relating to entrants into the legal
profession are within the competence of the Bar Council of India. The
Bench recognised the exclusive and unfettered right to practice to a person
enrolled as an advocate on the State roll. A conjoint reading of Sections 23,
29 and 33 clarifies that a person who is found qualified to be admitted as an
advocate on the State Roll by satisfying the statutory conditions under
Section 24(1), will automatically become entitled to practice full-fledged in
any court including the Supreme Court. Hence, the statutory conditions
under Section 24(1) are satisfied unless a disqualification takes place under
Section 24A of the said Act. The concept of pre-enrolment training was held
to be not necessary. On various grounds the 1995 Rules were held ultra
vires the said Act and was, thus, invalid.
12. We then turn to the judgment of this Court in Indian Council of
Legal Aid and Advice & Ors. v. Bar Council of India & Anr.3
. The Court
(1995) 1 SCC 732
struck down the endeavour of the Bar Council of India to put an age cap on
the entry into the profession. The Bar Council of India had prescribed that
any person who had completed the age of 45 years on the date on which he
submitted his application would not be entitled to be enrolled as an
13. Lastly, in Dr. Haniraj L. Chulani v. Bar Council of Maharashtra &
, the appellant was a medical practitioner since 1970 who insisted that
even though he was a medical practitioner, he was entitled to simultaneously
carry on the profession as an advocate. The Supreme Court opined that
Section 49(1)(ag) when read with Section 24 of the said Act confers wide
powers on the Bar Council of India to indicate the class or category of
persons who may be enrolled as advocates, which would include the power
to refuse enrolment in certain cases. The Bar Council of India was held to
be empowered to take all such steps as it considered necessary to filter
students at the entry stage to the law course at the entry point of the
profession, e.g. by providing an examination or a training course before
enrolment as an advocate.
In view of the magnitude of the ramifications of the issues involved,
we had considered it appropriate to appoint Mr. K.V. Vishwanathan, Senior
(1996) 3 SCC 342
Advocate as Amicus Curiae to assist the Court in this matter. Mr.
Vishwanathan gave a very comprehensive note pointing out the fallacies in
the earlier judgment of V. Sudeer5
, which are of significance and are
crystalised as under:
a. The Bar Council of India’s powers at a pre-enrolment stage are not
ousted through amendment to Section 7(a) of the said Act.
In V. Sudeer6
, this Court held that while the State Bar Councils have the
function of “maintenance of rolls” under the said Act, the Bar Council of
India is not concerned with the same. It was submitted by the Amicus that it
is important to read the specific terminologies used in different sections of
the said Act and to cull out the underlying meaning for each of these terms.
A plain reading of Sections 6(a), 6(b), Section 24(1)(e) and Section 28(2)(d)
of the said Act indicates that the functions of the State bar Council relates to
preparing and maintenance of rolls and the admission of persons as
advocates on its roll. However, in stark contrast, the Rule making power of
the Bar Council of India under Section 49(1)(ag) of the said Act empowers
the Bar Council of India to prescribe rules that could specify a class or
category of persons who are entitled to be enrolled. The meaning of “entitle”
would indicate that the Bar Council of India could prescribe such conditions
which would give the right or claim to a person to be enrolled as an
advocate. Thus, Bar Council of India’s role prior to enrolment cannot be
b. V. Sudeer7
failed to consider that Section 24(1) is subject to the other
provisions of the said Act and Rules made thereunder.
In V. Sudeer8
, this Court held that Sections 24(1)(d) and 28(2)(b) of the said
Act had empowered the State Bar Councils to provide for a pre-enrolment
training and examination, which had been repealed through the 1973
Amendment. The Amicus submitted that the legislature was not expected to
make any superfluous provisions that specifically empower the Bar Council
of India with the specific action regarding pre-enrolment training and
examination. However, the purport of Section 49 of the said Act and in
particular Section 49(1)(ag) already empowers the Bar Council of India to
It was also submitted that:
i. Section 24(1) of the said Act opens with the words "subject to
the provisions of this Act, and the rules made thereunder"
thereby making the conditions under Section 24(1) and its subclauses, directly subject to the rules framed under the said Act.
ii. In Satish Kumar Sharma v. Bar Council of H.P9
, a three
(2001) 2 SCC 365
Judges Bench of this Court held that the enrolment under
Section 24 of the said Act is subject to the Rules framed by the
Bar Council of India under Section 49 of the said Act, even if
no Rules were framed under Section 24(1)(e) or Section 28(2)
(b) of the said Act itself.
iii. This Court’s reliance on Section 24A of the said Act in V.
Sudeer10 is misplaced since the power to disqualify a person
from enrolment is materially different from prescribing
conditions subject to which the very right to be enrolled arises.
c. V. Sudeer11
erred in concluding that it is not one of the statutory
functions of the Bar Council of India to frame rules which impose preenrolment conditions.
The 1995 Rules could have been ‘traced’ to the Bar Council of India’s
function of ‘general supervision’ over the State Bar Councils, which was not
considered by V. Sudeer12:
i. In light of clauses (l) and (m) of Sub-Section (1), it was
submitted that Section 7 of the said Act is not an exhaustive list
of the Bar Council of India’s statutory function. Further, the Bar
Council of India’s function under Section 7(1)(g) of the said
Act would include the authority to specifically direct State Bar
Councils not to enrol persons who had not undertaken the
training course prescribed under the 1995 Rules.
ii. An additional statutory function can be culled out on a conjoint
reading of Section 7(1)(l) and Section 24(1) of the said Act,
which confers the Bar Council of India with a statutory
function of prescribing rules subject to which any person may
be treated as "qualified to be admitted as an advocate on a State
roll", such as a pre-enrolment training course or exam
prescribed by the Bar Council of India.
iii. Even if this Court concludes that no other provision of the said
Act confers the Bar Council of India with a function of laying
down pre-enrolment conditions, Section 49(1)(ag) of the said
Act would per se afford a basis to infer that the Bar Council of
India has such a function. Thereafter, the ministerial act of
enrolment, subject to the conditions that may be specified, is
carried out under Section 24(3)(d) of the said Act.
d . Viability of an Examination to be conducted post-enrolment:
If this Court decides to extend no reconsideration to the decision in
V.Sudeer13, the question then arises as to whether the Bar Council of India
could prescribe a post-enrolment examination under Section 49(1)(ah) of the
said Act. It is important to contrast the word used in Section 30 of the said
Act with Sections 24 and 29 of the said Act. While the former makes the
right to practice subject to the provisions of the said Act, the latter
provisions make their respective aspects subject to the provisions of the said
Act and the rules made thereunder. Therefore, the right to practise under
Section 30 of the said Act could only be restricted by another provision in
the said Act and not by the rules made under any provision in the said Act. If
this interpretation were to stand, then the framing of the All India Bar
Examination in its current format would have to be held illegal. However,
the previous interpretations of the provisions of the said Act in Jamshed
Ansari v. High Court of Allahabad & Ors.14, and N.K. Bajpai v. Union of
India & Anr.15
, make the right to practise subject to the provisions that grant
the rule-making power, thereby validating the All India Bar Examination in
its current form at the expense of expanding the scope of the restriction on
Section 30 of the said Act.
14. The aforesaid was supplemented by the Amicus through an additional
note addressing concerns that were expressed in the Court during the
proceedings on the practicality of the various thought processes. This inter
alia included as to when the examination could be held and how the
14 (2016) 10 SCC 554
15 (2012) 4 SCC 653
candidates should be dealt with till the examination results are declared.
The supplementary suggestions are as under:
a. If the examination is held pre-enrolment, two alternatives are
suggested: firstly, the candidates should be permitted to take the preenrolment examination on production of a transcript showing that
they have received a passing mark in all their law school
examinations and the degree certificate can be submitted at the time
of enrolment. Alternatively, if the eligibility could be extended to
those persons who are in the final semester of their law course, they
could be allowed to take the examination and any result in such
examination would then be subject to the said person passing all the
components required under the University/College’s course of study.
This will be subject to the All India Bar Examination results being
valid for a limited period of time.
b. During the period between date of passing the exam and the
date of enrolment, any graduate with a degree who is yet to appear for
the All India Bar Examination or get enrolled under the Advocates Act
would still be able to do all the tasks allied to the legal profession
other than the function of acting or pleading before the Courts.
c. The determination of seniority in case of post-enrolment
examination based on the date of birth of an advocate currently has
statutory recognition and a similar criterion would suit even a preenrolment examination. Thus, the practice and procedure as it exists
on date for post-enrolment examination would be apt for application
to a pre-enrolment examination, in addition to any criterion which has
been framed by the respective State Bar Councils.
d. Currently, any person who is provisionally enrolled is allowed
to practice for two years, but is allowed to take the All India Bar
Examination not just for those two years but for any number of times
till he passes the All India Bar Examination. The date of reckoning
seniority of the candidate is from the date of the provisional
enrolment. However, it was submitted that unlimited number of
attempts would not be in line with the scheme proposed by this Court
and must be limited to any number that this Court deems fit.
e. Rule-making power under Section 49(1)(ah) of the said Act
could be invoked requiring an examination for advocates who come
back into the practice after a substantial break from practice.
Alternatively, if this Court holds that the Bar Council of India can
make rules under Section 24(1) read with 49(1)(ag) of the said Act
which governs the circumstances in which any person may be deemed
“qualified to be admitted” as an advocate, a useful inference would
follow. Such rules could lay down that an enrolled advocate, having
taken an employment in a non-legal context for a substantial length of
time would be deemed to be a new enrolee. In order to regain that
qualification, that person could be subjected to the re-examination
rule and be required to take the All India Bar Examination once more.
f. The validity of the result obtained by any candidate in any preenrolment or a post-enrolment bar examination must also be limited
by time which would be a policy matter for the Bar Council of India
g. The Bar Council of India can exercise its power to issue
directions under Section 48B of the said Act to ensure uniformity and
fairness of the procedure followed by each of the State Bar Councils.
15. Then Attorney General, Mr. K.K. Venugopal, who had also been
appointed as an Amicus and after taking us through the material crystallised
two aspects as under:
a. The Bar Council of India is entitled to make rules under Section
49 of the said Act and the rule-making power of the Bar Council of
India would not be affected after the 1973 Amendment.
b. The pre-enrolment training may not be necessary since what is
gained through the mandate of the internship is far superior.
16. The Chairman of the Bar Council of India, Mr. Manan Kumar Mishra,
learned Senior Advocate, highlighted the powers of the Bar Council of India
to make rules for the implementation of the said Act. Mr. Mishra also relied
upon Section 7(1)(g) of the said Act which gives absolute control to the Bar
Council of India to exercise supervision and control over the State Bar
Contra View Point:
17. The significant contra view point was made by the petitioners in T.C.
(C) No.13/2011 seeking to contend that since the pre-enrolment examination
was done away in the light of the statutory provisions in V. Sudeer16, the first
two questions of the reference order need no reconsideration. With respect
to third question of the post-enrolment examination for which Rules 9 to 11
have been inserted in Chapter III of Part VI of the Bar Council of India
Rules, the plea of striking down was based on the following aspects:
a. Section 16 of the said Act provides for only two categories of
advocates, i.e. Senior Advocates and other advocates, and does not
provide for any third category of “provisionally enrolled
advocates” who shall be finally enrolled after giving the All India
b. Section 22 of the said Act provides for certificate of enrolment to
any person whose name is entered in the roll of advocates
maintained by the respective State Bar Council. Hence, once an
advocate enters the State Roll, he is an advocate and there is no bar
on his practice.
c. Section 24 of the said Act which exhaustively provides for
conditions and qualifications for the persons to be admitted as
advocates does not set any condition to the effect of clearing any
post-enrolment examination for continuing as an advocate.
d. Section 28 of the said Act was amended and the power of State Bar
Councils to provide for an examination and training prior to
enrolment was done away with.
e. Section 30 of the said Act which provides for right to practice does
not provide for clearing an examination to practice.
f. Rule 9 of the Bar Council of India Rules is unconstitutional and
violative of Article 14 of the Constitution, as a person graduating
before the introduction of the All India Bar Examination and
applying for enrolment is not required to take the Examination,
whereas those from 2009-2010 are mandated to take the
Examination, making the rule discriminatory in nature.
18. The aforesaid line of reasoning was supported by other pleas. It was
submitted that the power given to the Bar Council of India in V. Sudeer17
was for enlarging the scope of eligibility of becoming an advocate, and not
to narrow it down. Further, there was no accountability and transparency
with respect to the fees collected by Bar Council of India and its association
with an entity named ‘Pearl First’ which found no place on the official
website of the Bar Council of India.
Our Thought Process:
19. We have given our thought to the matter and share the concerns of all
those who appeared before us to see that the best come into the profession.
Quality of lawyers is an important aspect and part of administration of
justice and access to justice. Half baked lawyers serve no purpose. It is this
quality control, which has been the endeavour of all the efforts made over a
period of time.
20. The object of Parliament enacting the said Act was to consolidate the
law relating to legal practitioners. The prominent role of the Bar Council of
India, the apex body, is apparent from the functions prescribed for the Bar
Council of India under Section 7 of the said Act. Clause (h) of Sub-Section
(1), provides for promotion of legal education and for laying down standards
of such education in consultation with Universities in India and State Bar
Councils. Sub-Clause (m) is in the nature of a residuary clause, having the
widest amplitude to do all other things necessary for discharging the
aforesaid functions. These provisions do not entrust the Bar Council of
India with direct control of legal education, as primarily legal education is
within the province of the universities. Yet, the Bar Council of India, being
the apex professional body of the advocates, is concerned with the standards
of legal profession and the equipment of those who seek entry into that
profession.18 Neither these provisions, nor the role of the universities to
impart legal education, in any way, prohibit the Bar Council of India from
conducting pre-enrolment examination, as the Council is directly concerned
with the standard of persons who want to obtain a license to practice law as
21. Along with the aforesaid provision, we would like to advert to the
post-legal education stage for admission of advocates on the State roll.
Section 24 of the said Act prescribes as to who are the persons who may be
prescribed as Advocates on State roll. Sub-Section (1) of Section 24
provides conditions fulfilling which a person shall be qualified to be
admitted as an advocate on a State roll. Sub-Section (3) of Section 24 of the
said Act begins with the non-obstante clause qua Sub-Section (1) by stating
“notwithstanding anything contained in Sub-Section (1)”. Clause (d) of SubSection (3) of Section 24 of the said Act refers to the entitlement to be
enrolled as an Advocate under any Rule made by the Bar Council of India in
22. It is under Clause (d) of Sub-Section (3) of Section 24 of the said Act
that the Bar Council of India sought to introduce the All India Bar
18 See O.N. Mohindroo v. Bar council of Delhi and Ors. (1968) 2 SCR 709; Bar Council of India v. Board
of Management, Dayanand College of Law and Ors. (2007) 2 SCC 202
Examination, which would be uniformly applicable irrespective of the
recognised educational institutions from which a person would complete law
before he was enrolled at the Bar. It is this endeavour of the Bar Council of
India, which came to be assailed in the judgment of this Court in V. Sudeer19
and that challenge succeeded. We would have to look carefully at this
judgment in V. Sudeer20 as in the reference order to the Constitution Bench,
the first two questions referred to us really emanate from this judgment i.e.
the authority of the Bar Council of India to provide for pre-enrolment
training in terms of the 1995 Rules and whether pre-enrolment examination
can be prescribed by the Bar Council of India under the said Act. In terms of
the 1995 Rules, trainee advocates are entitled to appear in court for seeking
adjournments and to make mentioning on instruction of their guides, after
their provisional enrolment.
23. The judgment in V. Sudeer21, though operative prospectively, opined
that such rule making power of the Bar Council of India was ultra vires the
parent Act as it stood amended after the 1973 Amendment. In so far as the
exercise of power under Clause (d) of Sub-Section (3) of Section 24 of the
said Act was concerned, it was opined that a person, who is otherwise
eligible for enrolment having qualified the law degree, could not be denied
enrolment by prescribing additional qualifications of pre-enrolment training
and an examination of enrolment as an Advocate.
24. The decision of this Court in Indian Council of Legal Aid and
Advice (supra) was also discussed though that was a matter dealing only
with the aspect of prescribing the age bar to be eligible to be enrolled at the
25. The discussion notes that between 1961 and 1964, the State Bar
Councils required an applicant to undergo a course of training in law and
pass the examination after such a training as conditions of enrolment. But
after 1964 till 1973, it was permissible for the State Bar Councils to
prescribe a course of training in law as a pre-condition of enrolment of a
candidate and he was also required to pass the requisite examination during
the training or even after completing the training course and such
examination could be prescribed by the State Bar Council concerned only.
The object and reasons of the 1973 Amendment provided that it was felt
necessary to give powers to the Bar Council of India to enable it to add to
the categories of the eligible candidates who were otherwise not eligible to
be enrolled under Section 17 read with Section 24(1) of the said Act before
the said amendment. The reasoning, which permeates the judgments in V.
Sudeer22 is that if statutorily the power of the State Bar Councils has been
taken away in respect of a particular aspect i.e. either for providing training
or for holding examination, the endeavour of the Bar Council of India to
introduce a pre-enrolment examination could not be sustained as it would go
contrary to the intent of the 1973 Amendment.
26. The third question framed for reference refers to Section 49(1)(ah) of
the said Act for providing a post-enrolment examination if the answers to the
first two questions are in negative. Section 49 deals with the general powers
of Bar Council of India to make rules and Sub-Clause (ah) specifically deals
with the conditions subject to which an Advocate shall have the right to
practise and the circumstances under which a person can be deemed to
practise as an Advocate in a Court.
27. We now turn to the submissions of Mr. K.V. Vishwanathan, learned
Senior Counsel, who assisted this Court as an Amicus as he pleaded about
what he perceived as the fallacies of the earlier judgment of V. Sudeer23
contended in this behalf that the powers of the State Bar Councils and the
Bar Council of India encompass different fields and that of the Bar Council
of India are much wider. He also submitted that when the legislature ousted
the power of the State Bar Councils in this behalf, it did not per se amount
to whittling down the powers of the Bar Council of India under the existing
provisions, which do not stand modified or deleted. The functions of the
State Bar Councils, on a plain reading of Section 6 deal with their powers
relating to preparing and maintaining the rolls and admissions of persons as
advocates on their rolls. However, the power of the Bar Council of India
under Section 49(1)(ag) of the said Act empowers the Bar Council of India
to prescribe Rules that would specify a class or category of persons, who are
entitled to be enrolled as advocates. Section 49(1)(ag) reads as under:
“49. General power of the Bar Council of India to make rules –
[(1)] The Bar Council of India may make rules for discharging its
funtions under this Act, and, in particular, such rules may prescribe-
…. …. …. …. …. ….
(ag) the class or category of persons entitled to be enrolled as
28. Thus, he contended that the meaning of entitlement, would indicate
that the Bar Council of India could prescribe such conditions, which would
give the right or claim to a person to be enrolled as an advocate and the
power of Bar Council of India prior to enrolment cannot be ousted. Further,
the significance of Section 24(1) has to be read with other provisions of the
said Act and the Rules made thereunder including the “notwithstanding
clause” at the beginning of Sub-Section (3) of Section 24.
29. In the aforesaid context, we believe that we have to read the powers of
the State Bar Councils and the Bar Council of India in the context of their
respective statutory provisions. The powers are not pari materia. Bar
Council of India has much larger powers and authority as submitted and
discussed aforesaid including in the submissions of the learned Amicus.
30. We are unable to agree with the reasoning in V. Sudeer24 that because
the State Bar Councils’ power for providing training or for holding
examination was taken away by the 1973 Amendment, it ipso facto amounts
to taking away such powers if they so vested with the Bar Council of India.
The legislative object was clear i.e. not to confer such powers on the State
Bar Councils. However, that could not affect the position of the power of the
Bar Council of India, and naturally such a power existed. If the Bar Council
of India never had such a power, then the same could not be read by
implication. But, if the Bar Council of India had sufficient powers, then the
1973 Amendment would not take away those powers of the Bar Council of
India as the said amendment did not deal with the aspect of the powers of
the Bar Council of India.
31. In addition, the learned Judges in V. Sudeer25 opined that if such a
power has to be conferred, it should be conferred legislatively. While in
principle, there can be no disagreement with the broad proposition, the issue
is whether such a power is already existing with the Bar Council of India
under the statutory provisions. The functions of the Bar Council of India, as
specified under Section 7, inter alia prescribe an exercise of general
supervision and control over the State Bar Councils under Clause (g) of SubSection (1) of Section 7. Further, under Sub-Clause (l), the Bar Council of
India has the power to perform all other functions conferred on it by or
under the said Act and under Clause (m) to do all other things necessary for
discharging the aforesaid functions. The powers are, thus, wide and
extensive as conferred by the legislature. Thus, when under Section 24(1),
the Bar Council of India has the statutory power of prescribing Rules subject
to which a person may be treated as qualified to be admitted as an Advocate
in the State roll, then we believe that the Bar Council of India is not devoid
of its jurisdiction in undertaking a pre-enrolment training course or
examination prescribed by the Bar Council of India.
32. In case of any subsisting doubt, we must refer to Section 49(1)(ag) of
the said Act, which while dealing with the general powers of the Bar
Council of India to make rules, specifically stipulates that the class or
category of person entitled to be enrolled as advocates, is an aspect for
which all powers have been conferred on the Bar Council of India. Thus, the
provision for an examination for enrolment of advocates by the Bar Council
of India can hardly be doubted. We had specified at the inception itself that
quality control of entry into the Bar is the need of the hour.
33. The objective of the legislature while giving wide powers to the Bar
Council of India under Section 49, which gives it the powers to make Rules,
read with Section 24(3)(d), which gives it the powers to prescribe the norms
for entitlement to be enrolled as an Advocate under the Rules of the Bar
Council of India, leads us to the conclusion that these are adequate powers
with the Bar Council of India under the said Act to provide such norms and
34. We are, thus, of the view that while considering the questions referred
to us, the only conclusion which can be laid is that the interdict placed by
the judgment of this Court in V. Sudeer26 on the powers of the Bar Council
of India cannot be sustained and we cannot hold that V. Sudeer27 lays down
the correct position of law.
35. The effect of the view expressed by us would be that it has to be left
to the Bar Council of India as to at what stage the All India Bar Examination
has to be held – pre or post. There are consequences especially in respect of
the interregnum period which would arise in holding the All India Bar
Examination in either scenario, and it is not for this Court to delve into them
but it would be appropriate to leave it to the Bar Council of India to look to
the niceties of both situations. However, in view of larger ramifications we
do consider it appropriate to delve into some, though not all of the aspects
which may get involved in holding the All India Bar Examination, especially
in view of some suggestions made by the Amicus.
36. We may take note of the fact that the All India Bar Examination is
scheduled to be held twice in a year. It is necessary that this schedule should
be strictly followed as otherwise the students with law degrees would be left
idling their time.
37. One of the questions which arose was whether only on passing the
examination from a law University/College or obtaining such a degree
should a person be eligible to take the All India Bar Examination? In India,
the various recognised institutions providing law degrees often declare
results at different times. The concern is that a person on account of nondeclaration of result may lose out on the opportunity to appear in the All
India Bar Examination leading to a fairly long hiatus period of time without
having the opportunity to work in court proceedings.
38. We are inclined to accept the suggestion from the learned Amicus that
students who have cleared all examinations to be eligible to pursue the final
semester of the final year course of law, on production of proof of the same,
could be allowed to take the All India Bar Examination. The result of the All
India Bar Examination would be subject to the person passing all the
components required under the course of study of the University/College.
This would be subject to the All India Bar Examination results being valid
for a specified period of time.
39. More often than not, there would be a hiatus period between the date
of passing the examination from a law University/College and the date of
enrolment. The eligibility of a law graduate to perform certain tasks may
thus arise. The suggestion made is that during the period between the date
of passing the examination and the date of enrolment, any graduate with the
degree who is yet to appear for the Bar examination or get enrolled under
the said Act should be able to do all the tasks allied to the legal profession
other than the function of acting or pleading before the courts. We give our
imprimatur to this suggestion.
40. Another issue which arises is that of seniority at the Bar. This is
relevant for many purposes including chamber allotment, at the time of
elevation, etc. The determination of seniority in case of a post-enrolment
examination based on the date of birth of an advocate is stated to have
statutory recognition under Section 21 of the said Act currently and, thus, it
has been suggested that a similar criteria would suit in any pre or post
enrolment examination. We must also note here that the Bar Council of India
has the powers to make rules determining the seniority among advocates
under Section 49(1)(ae) of the said Act.
41. The Amicus has suggested that unlimited attempts to pass the All
India Bar Examination would not be in line of scheme proposed before this
Court and it should be limited to any number of attempts which this Court
deems fit to do so. We would, of our own, hesitate to prescribe the number
of opportunities available to a law graduate to take the All India Bar
Examination, especially when it is only on passing the All India Bar
Examination that he would be entitled to be enrolled in a pre-enrolment
examination. In case of a post-enrolment examination, the period of two
years between enrolment and passing the All India Bar Examination is
42. Learned Amicus also sought to flag the issue of persons, who may
take up other jobs and may want to enrol themselves as advocates later at
some stage. There may also be persons who despite being enrolled at the
Bar, decide to take another job and come back into the profession after a
considerable period of time, at times even post retirement. It is in that
context that the learned Amicus has suggested that the rule making power
under Section 49(1)(ah) of the said Act could be invoked requiring an
examination for the advocates who come back into the practice after a
substantial break from practice. We are inclined to accept the suggestion in
principle that appropriate rules can be framed laying down that an enrolled
advocate who takes up an employment in a non-legal context for a
substantial length of time (say for five years) would be deemed to be a new
enrolee and in order to regain the qualification, that person would be
required to take the All India Bar Examination once more. We believe that
the requirements of an active legal practice and that of an unconnected job
are different. Even if a person has a law degree or enrolment, it does not
mean that his ability to assist the court would continue with him if there are
long hiatus period of time in some unconnected job. He would have to hone
and test his skills afresh. Thus, if there is a substantial break, norms should
be specified by the Bar Council of India that to regain that qualification, the
person would be subject to re-examination and would be required to take the
All India Bar Examination once more.
43. The other two suggestions made by the learned Amicus are that the
validity of the result obtained by any candidate in any pre-enrolment or a
post-enrolment bar examination must be limited by time which would be a
policy matter for the Bar Council of India to consider, and the Bar Council
of India can exercise its power to issue directions under Section 48B of the
said Act to ensure uniformity and fairness of the procedure followed by each
of the State Bar Councils. We agree with these suggestions.
44. We also have one caveat arising from the plea that different State Bar
Councils are charging different fees for enrolment. This is something which
needs the attention of the Bar Council of India, which is not devoid of the
powers to see that a uniform pattern is observed and the fee does not become
oppressive at the threshold of young students joining the Bar.
45. While we agree in principle with the suggestions of the learned
Amicus, these should receive the attention of the Bar Council of India
urgently in the process of steps taken by the Bar Council of India in view of
46. We may note that the contra viewpoints sought to be suggested before
us predicated on the judgment of this Court in V. Sudeer28 case and in view
of our opining that the same would not be good law, they really do not
survive for consideration.
47. Our hope is that the aforesaid observations while conferring a greater
role on the Bar Council of India, would make the Bar Council of India more
conscious of the importance of the role it has to perform, including ensuring
that the only persons who are well equipped with the tools of law pass the
All India Bar Examination. Further, in view of periodic changes in the legal
position and the consequent nature of All India Bar Examinations being
held, we would like to make this judgment prospectively applicable so that it
does not disturb the scenarios which have prevailed during the interregnum
period. We clarify that the setting aside of the judgment in V. Sudeer29 is in
no manner an imprimatur to mandating the requirement of pre-enrolment
training. We expect the Bar Council of India to take necessary steps within
a period of three months. We greatly appreciate the assistance rendered by
48. In the end, we hope that our view would assist in bringing forth the
enrolment of young bright minds at the Bar, who would be able to assist the
Court in a more efficient manner so that the administration of justice is
49. The civil appeal and the petitions are disposed of leaving the parties to
bear their own costs.
[Sanjay Kishan Kaul]
[Abhay S. Oka]
February 10, 2023.