MANU/SC/1635/1999

Equivalent/Neutral Citation: 1999(1)GLT(SC )5, 1999 INSC 105, (1999)3SC C 176, (1999)2UPLBEC 1517

IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) Nos. 398, 434 and 438 of 1996, Civil Appeal No. 1468 of 1999, Writ
Petition (Civil) Nos. 495 of 1997, 887 of 1996, 425 of 1998, Civil Appeal No. 1467 of
1999 and Writ Petition (Civil) No. 605 of 1998
Decided On: 12.03.1999
V. Sudeer Vs. Bar Council of India and Ors.
Hon'ble Judges/Coram:
S.B. Majmudar and S.N. Phukan, JJ.
Case Note:
Constitution - Pre-enrolment Training - Sections 7, 23, 24 and 49 of the
Advocates Act, 1961 - Whether Bar Council of India Training Rules, 1995 as
amended by resolution dated 19th July 1998, relating to training of entrants
to legal profession, within competence of Bar Council of India or ultra vires its
rule-making powers under Advocates Act and in alternative, whether these
Rules are unreasonable, arbitrary and hence, violative of Article 14 of the
Constitution of India - Held, once an applicant gets enrolled as "advocate" in
"State Roll", he gets right of audience subject to scheme of priorities
mentioned in Section 23 - Between 1964 till 1973, State Bar Council could
prescribe course of training in Law as precondition for enrolment of candidate
- After January1974, State Bar Councils deprived of their powers to prescribe
course of pre-enrolment training in Law and examination to be undergone by
Law graduates seeking enrolment as 'advocates' on State Roll - On
recommendation of Bar Council of India, provisions relating to pre-enrolment
training deleted by legislature by deletion of Section 24(1)(d) - Impermissible
to presume that legislature without expressly including same topic in rule-
making power of Bar Council of India, impliedly permitted Bar Council of India
to prescribe pre-enrolment training to new entrants at Bar simultaneously
with withdrawal of same training from 1974 onwards - Section 24(3)(d)
permits Bar Council of India by exercise of rule-making power to make an
otherwise ineligible person eligible for enrolment and does not act in reverse
direction to make an otherwise eligible person ineligible - Section 24(3)(d)
cannot be legitimately invoked by Bar Council of India for sustaining
impugned Rules - Neither Section 7(1)(h) nor Section 24(3)(d) entitle Bar
Council of India to provide for disqualification or disability or additional
condition for enrolment of person who was otherwise eligible to be enrolled
as advocate under Section 24(1) - Impugned Rules providing concept of
trainee advocate violates scheme of the Act and unsustainable in view of
Apex Court's ruling in Indian Council of Legal Aid and Advice v. Bar Council of
India - Rule-making power under Section 49(1)(ag) ancillary to statutory
function entrusted to Bar Council of India by Section 24(3)(d), cannot travel
beyond statutory sphere - Impugned Rules quashed - Writ Petition allowed
and SLP dismissed
JUDGMENT

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S.B. Majmudar, J.
1. Leave granted in the special leave petitions.
2. These writ petitions under Article 32 of the Constitution of India as well as the two
special leave petitions being SLPs (C) Nos. 13755 of 1996 and 12989 of 1998 moved by
the Bar Council of Maharashtra and Goa and the Bar Council of India respectively raise a
common question for our consideration, namely, whether the Bar Council of India
Training Rules, 1995 (for short 'the rules') as amended by the resolution of the Bar
Council of India in its meeting dated 19.7.1998 relating to training of entrants of the
legal profession are within the competence of the Bar Council of India or are ultra vires
its rule-making powers under the Advocates Act, 1961 (for short "the act") and in the
alternative, whether these Rules are unreasonable and arbitrary and hence violative of
Article 14 of the Constitution of India.
3 . The writ Petitioners, who have successfully completed their legal education by
getting requisite Law Degrees from the Universities concerned have contended before us
in these writ petitions that their right to practise Law as made available under the
relevant provisions of the Act is being arbitrarily denied by the impugned Rules framed
by the Bar Council of India and, therefore, their fundamental right under Article 19(1)
(g) of the Constitution of India is being violated. That the said Rules do not impose any
reasonable restrictions on the exercise of their fundamental right. It is also contended
that in any case, the Rules are so framed as to be totally unworkable and are highly
unreasonable and discriminatory in character and hence they offend Article 14 of the
Constitution of India also. The civil appeal arising out of the SLP by the Bar Council of
Maharashtra and Goa brings in challenge the decision of the Bombay High Court which
upheld the impugned Rules and dismissed the writ petition field by it and that is how
the State Bar Council is before us. Its contention is on the same lines as canvassed by
learned Counsel appearing for the writ Petitioners. While civil appeal arising out of
SLP(C) No. 12989 of 1998 filed by the Bar Council of India, on the other hand, brings in
challenge the judgment and order rendered by the learned Single Judge of the Punjab
and Haryana High Court, who took the view in favour of the original writ Petitioner, the
Respondent herein, that the impugned Rules would not apply to the writ Petitioner who
had obtained his Law Degree in 1981 as the Rules were purely prospective is character.
It is, therefore, obvious that all these matters raise a common question regarding
legality and validity of the impugned Rules. If the Rules are upheld, then the only
further question where they are prospective in nature or not would survive. This Court
has treated Writ Petition (Civil) No. 398 of 1996 as the leading petition and, therefore,
we shall also refer to the pleadings of the parties and the relevant documents filed
therein in the latter part of this judgment. By order dated 16.9.1997, a three-Judges
Bench of this Court, presided over by S.C. Agarwal, J., appointed Shri Joseph
Vellapally, learned Senior Advocate as amicus curiae to assist the Court on behalf of the
Petitioner. All the other Petitioners-in-person were permitted to submit their written
submissions and the oral arguments were permitted to be submitted on behalf of all of
them by learned amicus curiae Senior Advocate. We have to place on record our high
sense of appreciation for the pains taken by amicus curiae Senior Advocate, Shri Joseph
Vellapally, who has been good enough to look into all the relevant aspects of the matter
and has placed his oral and written submissions in this connection. By order dated
21.2.1997, another two-Judges Bench of this Court, while treating Writ Petition (Civil)
No. 398 of 1996 as a leading petition, directed that the other petitions that are pending
in the High Court or which may be filed thereafter shall remain stayed till further orders
of this Court. The parties have exchanged relevant pleadings which are all brought on
record supported by documents on which they rely.

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4. It appears that earlier when this group of matters reached final hearing, in the light
of what transpired in the Court then, a Bench of this Court consisting of S.C. Agrawal
and B.N. Kirpal. JJ. by order dated 30.9.1997 adjourned these proceedings to enable
the Bar Council of India to take a fresh decision in the matter in the light of its decision
taken in the earlier meetings regarding suitable modification of the impugned Rules. It
appears that ultimately on 4.8.1998, before a bench of three learned Judges, Shri P.P.
Rao, learned Senior Counsel placed a copy of the resolution of the Bar Council of India
whereby the Rules were amended. We have also mentioned the earlier resolution by
which the impugned Rules were amended. It is thereafter that this group of matters
reached for final hearing before us. We, therefore, have to examine the legality and
validity of the impugned Rules as amended by the resolution of the Bar Council of India
dated 19.7.1998.
Rival contentions.
5 . We may briefly mention the rival contentions submitted for our consideration by
learned counsel, Shri N.N. Keshwani, who appeared in support of Writ Petition No. 425
of 1998, as well as learned amicus curiae Shri Joseph Vellapally on behalf of the other
writ Petitioners and Shri P.P. Rao, learned Senior Counsel for the Bar Council of India,
which is the author of the impugned Rules in support of their respective cases.
6 . Learned counsel for the Petitioners submitted, tracing the history of the relevant
provisions of the Act and the Rules, that there is no power with the Bar Council of India
to frame the impugned Rules. That Section 7 of the Act lays down the statutory
functions of the Bar Council of India. The provisions thereof do not entitle the Bar
Council of India to frame such impugned Rules prescribing a precondition before
enrolment of an applicant as an 'advocate' under the Act by requiring him to undergo
pre-enrolment training and apprenticeship as laid down under the impugned Rules. It
was also submitted that Section 24 Sub-section (3)(d) of the Act also was not available
to the Bar Council of India to frame such Rules. As a sequel, it was submitted that the
rule-making power, of the Bar Council of India as laid down by Section 49 could not be
pressed into service by it in support of the impugned Rules.
7. On the other hand, learned Counsel in Writ Petition No. 425 of 1998 submitted that
even assuming that the impugned Rules fall within the rule-making power of the Bar
Council of India, the Rules framed are so obnoxious, arbitrary, unreasonable and
unworkable that they violate the fundamental right of the Petitioners under Article 14 of
the Constitution of India in any case. The appeal arising from SLP No. 12989 of 1998
filed by the Bar Council of India, raising the question of retrospective effect of the Rules
in question projected and additional contention which may not survive if the Rules are
held to be ultra vires the rule-making power of the Bar Council of India. In support of
the contentions raised on behalf of the Petitioners by the learned counsel, reliance was
placed on a three-Judges Bench judgment of this Court of Indian Council of Legal Aid &
Advice v. Bar Council of India MANU/SC/0134/1995 : (1995)1 SCC 732 while Shri
Rao, learned Senior Counsel for the Bar Council of India, submitted on the other hand
that the said decision while interpreting the provisions of Section 49(1)(ah) of the Act
was rendered per incuriam as it had not noticed the decision of the Constitution Bench
of this
April 99 starts from here
Court in Lily Isabel Thomas, Re MANU/SC/0028/1964 : AIR 1964 SC 855 : (1964)6
SCR 229 as well as the express provisions of Section 24(3)(d) of the Act. Mr. Rao

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submitted that the impugned Rules were legal and valid and were properly framed
under Section 7 read with Section 24(3)(d) and Section 49(1) and (2) of the Act. In the
light of the aforesaid rival contentions, the following points arise of our consideration:
1. Whether the impugned Rules are ultra vires the rule-making power of the Bar
Council of India as available to it under the provisions of the Act;
2. If the aforesaid question is answered in the negative and in favour of the Bar
Council of India, whether the impugned Rules are arbitrary and unreasonable so
as to violate the guarantee of Article 14 of the Constitution of India;
3. If the impugned Rules are legal and valid, whether the Respondent in the Bar
Council of India's appeal, who has got his Law Degree prior to the coming into
force of these Rules, can be required to comply with these Rules if he applies
for being enrolled as an 'advocate' under the Act after the Rules came into
force; and
4. What final order?
We shall deal with these points seriatim.
Point I.
8 . In order to appreciate the rival contentions centering round this point, it will be
necessary to have a peep into the historical background of the Act which came into four
years back in 1961 and also have a bird's-eye view of the subsequent amendments
thereto spread over a number of years during its currency till date. It will also be
necessary to keep in view the salient features of the relevant provisions of the Act. The
Act seeks to amend and consolidate the law relating to legal practitioners and to provide
for the constitution of Bar Councils and an all-India Bar. A Bill was introduced in
Parliament seeking to implement the recommendations of the 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 insofar as the recommendations related
to the Bar and to "legal education". The main features of the Bill were as under:
(1) the establishment of an All-India Bar Council and a common Roll of
Advocates, an 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.
Section 2 Sub-section (1) Clause (a) of the Act defines, amongst others, an "advocate"
to mean "an advocate entered in any roll under the provisions of this Act". Section 2
Sub-section (1) Clause (d) defines "Bar Council" to mean "a Bar Council constituted
under this Act". While as per Clause (e) "Bar Council of India" means "the Bar Council

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constituted under Section 4 for the territories to which this Act extends". "Law
graduate" is defined by Clause (h) to mean "a person who has obtained a bachelor's
degree in Law from any university established by law in India;" and a "legal
practitioner" in Clause (i) to mean "an advocate [or vakil] of any High Court, a pleader,
mukhtar or revenue agent,". The term "roll" is defined in Clause (k) to mean "a Roll of
Advocates prepared and maintained under this Act;". The "State Bar Council" is defined
in Clause (m) as "a Bar Council constituted under Section 3;" and "State Roll" is defined
in Clause (n) as "a Roll of Advocates prepared and maintained by a State Bar Council
under Section 17". When we turn to Section 17, we find that it is in Chapter III of the
Act dealing with "admission and enrolment of advocates". Section 16, which precedes
Section 17, deals with senior and other advocates and lays down in Sub-section (1)
thereof that" there shall be two classes of Advocates, namely, Senior Advocates and
other advocates" and then follows Section 17 Sub-section (1) which provides that
"every State Bar Council shall prepare and maintain a Roll of Advocates". Sub-section
(2) reads thereof as under:
17. (2) Each such Roll of Advocates shall consist of two parts, the first part
containing the names of Senior Advocates and the second part, the names of
other advocates.
Section 22 provides for certificate of enrolment and Sub-section (1) thereof lays down:
22. (1) There shall be issued a certificate of enrolment in the prescribed form
by the State Bar Council to every person whose name is entered in the Roll of
Advocates maintained by it under this Act.
Section 23 lays down "Right of preaudience" and the priority given to the various
advocates while addressing courts. It lays down the scheme of priority as follows: the
Attorney General of India has preaudience over all other advocates. Next comes the
Solicitor General of India in the order of priority for audience. Then, the Additional
Solicitor General of India; followed by the second Additional Solicitor General of India,
further followed by the Advocate General of any State. Next in the hierarchy of the
priority come Senior Advocates and last are other advocates having the right of
audience. It becomes, therefore, clear that once an applicant is enrolled as an
"advocate" in the "State Roll" maintained by the State Bar Council, he gets the right of
audience subject to the scheme of priorities as mentioned in Section 23 and naturally
"audience" implies the full right of addressing the Court on all legal and factual issues
involved in the case in which he appears as an advocate under the Act. Now follows
Section 24, which lays down the "qualifications for a person to be admitted as an
advocate on a State Roll". The said Section with its relevant sub-sections (1), (2) and
(3) deserves to be extracted in extenso at this stage;
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 fulfils the
following conditions, namely:
(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 practice Law in that other country;

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 (b) he has completed the age of twenty-one years;
(c) he has obtained a degree in Law:
(i) before the [12th day of March, 1967], from any university
in the territory of India; or
(ii) before the 15th day of August, 1947, from any university in
any area which was comprised before that date within India as
defined by the Government of India Act, 1935; or
[(iii) after the 12th day of March, 1967, save as provided in
Sub-clause (iii-a), after undergoing a three-year course of
study in Law from any university India which is recognised for
the purposes of this Act by the Bar Council of India; or
(iii-a) after undergoing a course of study in law, the duration
of which is not less than two academic years commencing from
Academic Year 1967-68, or any earlier academic year from any
university in India which is recognised for the purposes of this
Act by the Bar Council of India; or]
[(iv) in any other case, from any university outside the
territory of India, if the degree is recognised for the purposes
of this Act by the Bar Council of India; or]
[he is a barrister and is called to the Bar on or before the 31st day of
December, 1976; [or has passed the articled clerk's examination or any
other examination specified by the High Court at Bombay or Calcutta
for enrolment as an attorney of that High Court;] or has obtained such
other foreign qualification in Law as is recognised by the Bar Council of
India for the purpose of admission as an advocate under this Act];
(d)[* * *]
(e) he fulfils such other conditions as may be specified in the rules
made by the State Bar Council under this Chapter;
(f) he has paid, in respect of the enrolment, stamp duty, if any,
chargeable under the Indian Stamp Act, 1899 (2 of 1899), and an
enrolment free payable to the State Bar Council of [six hundred rupees
and to the Bar Council of India, one hundred and fifty rupees by way of
a bank draft drawn in favour of the Council):
Provided that where such person is a member of the Scheduled
Castes or the Scheduled Tribes and produces a certificate to
that effect from such authority as may be prescribed, the
enrolment fee payable by him to the State Bar Council shall be
[one hundred rupees and to the Bar Council of India, twenty-
five rupees].
[Explanation. - For the purposes of this sub-section, a person shall be deemed
to have obtained a degree in Law from a university in India on the date on
which the results of the examination for that degree are published by the
university on its notice board or otherwise declaring him to have passed that

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 examination.]
(2) Notwithstanding anything contained in Sub-section (1), [a vakil or a pleader
who is a Law graduate] may be admitted as an advocate on a State Roll if he:
(a) makes an application for such enrolment in accordance with the
provisions of this Act, not later than two years from the appointed day;
and
(b) fulfils the conditions specified in Clauses (a), (b), (e) and (f) of
Sub-section (1).
[(3) Notwithstanding anything contained in Sub-section (1), a person who:
(a) [***] has, for at least three years, been a vakil or a pleader or a
mukhtar, or was entitled at any time to be enrolled under any law
[***] as an advocate of a High Court (including a High Court of a
former Part B State) or of a Court of Judicial Commissioner in any
Union Territory; or
[(aa) before the 1st day of December, 1961, was entitled otherwise
than as an advocate to practise the profession of Law (whether by way
of pleading or acting or both) by virtue of the provisions of any law, or
who would have been so entitled had he not been in public service on
the said date; or] (b) [* * *]
(c) before the 1st day of April, 1937, has been an advocate of any High
Court in any area which was comprised within Burma as defined in the
Government of India Act, 1935; or
(d) is entitled to be enrolled as an advocate under any rule made by
the Bar Council of India in this behalf, may be admitted as an advocate
on a State Roll if he:
(i) makes an application for such enrolment in accordance with
the provisions of this Act; and
(ii)fulfils the conditions specified in Clause (a), (d), (e) and (f)
of Sub-section (1).
***
The aforesaid Section has undergone a number of amendments by the passage of time
since the enactment of the said Act. It is, therefore, necessary to refer to the relevant
amendments to that Section. It may be noted that Section 24 Sub-section (1), as it
stands on the statute-book on date, does not include clause (d) which was omitted by
Section 18 of amending Act 60 of 1973 with effect from 31.1.1974. This Clause (d) of
Section 24(1) as it stood originally from 1961 read as under:
2 4 . (1)(d) he has undergone a course of training in law and passed an
examination after such training both of which shall be prescribed by the State
Bar Council:
Provided that this clause shall not apply to:

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 (i) a barrister who has received practical training in England or
a person who has obtained a degree in Law from any university
in India before the appointed day;
(ii) any person who has for at least two years held a judicial
office in the territory of India or is a member of the Central
Legal Service;
(iii) any person who has for at least two years held a judicial
office in any area which was comprised before the 15th day of
August, 1947, within India as defined in the Government of
India Act, 1935, or has been an advocate of any High Court in
any such area;
(iv) any person who has practised before any High Court and
who has discontinued practice by reason of his taking up
employment under the Government, a local authority or any
other person; and
(v) any other class of persons who by reason of their legal
training or experience are declared by the Bar Council of India
to be exempt from the provisions of this clause;
The aforesaid Clause (d) also underwent a change from 1964. The said Clause
(d), in the form in which it is extracted above was operative only upto 1964. It
was amended in 1964 as under:
in Clause (d),-
(i) the words 'after such training' shall be omitted;
(ii) in the proviso, for paragraph (i), the following paragraph
shall be substituted, namely:
(i) a person who has obtained a degree in Law from any
university in India on the results of an examination held before
the 31st day of March, 1964 or such other later date as may be
prescribed, or a barrister who was called to the Bar before such
date, or a barrister who, having qualified after that date, has
received such practical training in Law as may be recognised in
this behalf by the Bar Council of India;
It becomes, therefore, clear that between 1961 and 1964, the State Bar Council, as a
condition of enrolment, required an applicant to undergo a course of training in Law
and also required him to pass the examination after such a training. But after 1964 till
1973, it was permissible for the State Bar Council to prescribe a course of training in
Law as a precondition for enrolment of a candidate and he was also required to pass the
requisite examination during the training or even after completion of the training course
and such examination could be prescribed by the State Bar Council concerned only. It is
further required to be noted that in the aforesaid Section 24, between 1961 and 1964,
there was no Sub-section (3). That Sub-section (3) came to be inserted in Section 24 in
1964 by Act 21 of 1964. In order to appreciate the scope and ambit of Sub-section (3)
of Section 24, as inserted by the aforesaid Amending Act, it will be profitable to have a
look at the Objects and Reasons underlying the introduction of the said amendment.

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These Objects and Reasons started that it was felt necessary to give powers to the Bar
Council of India with a view to enable it to add to the categories of eligible candidates
those persons who were otherwise not eligible to be enrolled under Section 17 read
with Section 24(1) of the Act, as it then stood on the statute-book. In para 3 of the
Objects of the Bill at Item 5 was mentioned the fact that categories of persons who
were not by then entitled to be enrolled as advocate could be brought in by conferring
powers on the Bar Council of India as per the amending provisions. Thus, Sub-section
(3) of Section 24 was brought on the statute-book by the said amending Act 21 of
1964.
9 . Before we come to the present texture of Section 24, we may mention one more
amending Act 60 of 1973, which by Section 18 thereof, deleted the then existing Clause
(d) from Sub-section (1) of Section 24. Meaning thereby, after 31.1.1974, the State Bar
Councils were deprived of their powers to prescribe a course of pre-enrolment training
in Law and examination to be undergone by Law graduates who were seeking enrolment
as "advocates" on the State Roll.
10. We may at this stage refer to the Statement of Objects and Reasons as mentioned
in the Advocates (Amendment) Bill, 1970 for further amending the Act and which
(Amendment) Bill ultimately resulted in amending Act 60 of 1973 by which Section
24(1)(d) stood deleted. The said clause, as noted earlier, entitled the State Bar Councils
to fame rules for prescribing pre-enrolment training and examination subject to which a
person would get qualified to be enrolled as an advocate on the State Roll. The reason
why this pre-enrolment training and examination was sought to be done away with by
Parliament is clearly seen from the Statement of Objects and Reasons for introducing
the aforesaid (Amendment) Bill of 1970. The said Statement of Objects and Reasons
was produced before us by learned Additional Solicitor General, Shri C.S. Vaidyanathan
for our scrutiny. Amongst others the need for deleting the statutory provision regarding
pre-" enrolment training was highlighted by para (iii) of the said Statement of Objects
and Reasons. It is profitable to reproduce the said paragraph as under:
'Pre-enrolment training. - The Bar Council of India has decided that in future a
degree in Law can be obtained only after undergoing a three-year course of
study in Law after graduation as a result of which the age of entry into the legal
profession becomes much higher than the age of entry in other professions. It
is, therefore, felt that after a three-year course in Law in a university it is not
necessary to retain the statutory provision in the Act requiring a further
examination or practical training.
11. It becomes clear from a mere look at the said paragraph that it was the Bar Council
of India itself which had decided that a degree of Law obtained by a person after
undergoing three years' course of study after graduation would be enough for qualifying
him to be enrolled as an advocate under the Act and, therefore, pre-enrolment training
till then required of him before getting enrolment was not necessary. The decision of
the Bar Council of India was accepted by Parliament and the aforesaid provision by way
of additional eligibility condition for enrolment as an Advocate as then existing under
Section 24(1)(d) was deleted.
12. So far as three years' LLB Degree course is concerned, the syllabus prescribed by
the Bar Council of India itself by its communication dated 21.10.1997 addressed to the
Registrars of all the universities imparting legal education in India, the Deans of the
Faculties of Law of universities and the Members of the law colleges makes it clear that
practical training to the given to a Law student prior to his getting a degree of Law from

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a university after completing three years' course was to be included in the course of
study. As practical training was suggested by the Bar Council of India itself for being
included in the curriculum to be prescribed by the universities for Law students, it
obviously became redundant for providing further practical training before enrolment of
such trained graduates in Law. That is precisely the reason why after January 1974 need
for pre-enrolment training was not insisted upon by the legislature and that too at the
suggestion and on the recommendation of the Bar Council of India itself. However,
learned Senior Counsel, Shri P.P. Rao for the Bar Council of India is right when he
contends that in those days it may have been so felt, but with the passage of time and
experience gained by the Bar Council of India regarding the actual working of the legal
profession at various levels in India and also in the light of the recommendation of a
High-Powered Committee chaired by Hon'ble Mr. Justice A.M. Ahmadi to be referred to
hereinafter, the need for providing training to advocates before they become entitled to
practise was visualised and that is the reason why the impugned Rules were enacted
and that, therefore, what the Bar Council of India decided in 1973 cannot create any
estoppel against the Bar Council of India in 1995. Even accepting this contention, the
question remains whether the Bar Council of India by resorting to the enactment of the
impugned Rules had remained within the permissible limits of the rule-making power or
not and it is this question which has to be considered by us in the present proceedings.
13. We may, at this stage, also refer to Section 7 laying down the statutory functions of
the Bar Council of India. This section, as it stood at the relevant time, read as under:
7. Functions of Bar Council of India:
[(1)] The functions of the Bar Council of India shall be:
(a) [* * *]
(b) to lay down standards of professional conduct and etiquette for
advocates;
(c) to lay down the procedure to be followed by its Disciplinary
Committee and the Disciplinary Committee of each State Bar Council;
(d) to safeguard the rights, privileges and interests of advocates;
(e) to promote and support law reform;
(f) to deal with the dispose of any matter arising under this Act, which
may be referred to it by a State Bar Council;
(g) to exercise general supervision and control over State Bar Councils;
(h) to promote legal education and to lay down standards of such
education in consultation with the universities in India imparting such
education and the State Bar Councils;
(i) to recognise universities whose degree in Law shall be a
qualification for enrolment 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 given in this behalf];
[(ia) to conduct seminars and organise talks on legal topics by

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 eminent jurists and publish journals and papers of legal
interest;
(ib) to organise legal aid to the poor in the prescribed manner;
(ic) to recognise on a reciprocal basis foreign qualifications in
Law obtained outside India for the purpose of admission as an
advocate under this Act;]
(j) to manage and invest the funds of the Bar Council;
(k) to provide for the election of its members;
(l) to perform all other functions conferred on it by or under this Act;
(m) to do all other things necessary for discharging the aforesaid
functions.
[(2)The Bar Council of India may constitute one or more funds in the prescribed
manner for the purpose of:
(a) giving financial assistance to organise welfare schemes for indigent,
disabled or other advocates;
(b) giving legal aid or advice in accordance with the rules made in this
behalf;
[(c) establishing law libraries.]
(3) The Bar Council of India may receive any grants, donations, gifts or
benefactions for all or any of the purposes specified in Sub-section (2) which
shall be credited to the appropriate fund or funds constituted under that sub-
section.]
(emphasis supplied)
It is to be noted that Clause (a) of Section 7, which originally stood, got omitted with
effect from 31.1.1974. That Clause (a) pertained to "maintenance of Rolls of
Advocates". Hence from 1974, the Bar Council of India was not concerned with
maintenance of Rolls of Advocates which function became the sole concern of State Bar
Councils only. These rolls obviously consisting of the names of entrants to the legal
profession were clearly envisaged under Section 24 of the Act. The next relevant
Section is Section 24-A dealing with "disqualification for enrolment of a person desirous
of being an advocate under the Act". That Section was inserted by Act 60 of 1973. It is
relevant to note that the legislature thereunder has enumerated three categories of
persons who are disqualified from being enrolled as advocates even through they might
otherwise fulfil the requirements of Section 24 Sub-section (1). The imposition by the
impugned Rules of the requirement of an applicant to undergo pre-enrolment training
does not result in any disqualification of such an applicant if he has not under taken
such a training as it is not treated by the legislature as one of such disqualifications as
envisaged by Section 24-A. In other words, by the statutory provisions of Section 24(1)
and Section 24-A, after 1973. no legislative intention can be culled out requiring an
applicant Law graduate seeking enrolment as an advocate under the Act to undergo any
pre-enrolment training as a condition for enrolment nor its absence to be treated as a
disqualification for enrolment. The next relevant Section is Section 28, which deals with

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"powers of the Star Bar Council to make rules to carry out the purposes of the Chapter
dealing with admission and enrolment of advocates". The said Section, as standing on
the statute-book on date, does not contain Clause (b) in Sub-section (2) thereof. Clause
(b) was deleted by Section 21 of amending Act 60 of 1973 with effect from 31.1.1974.
The said Sub-clause (b), prior to its deletion read as under:
28. (2)(b) a course of practical training in Law and the examination to be
passed after such training for admission as an advocate on the roll of the Bar
Council;
A conjoint reading of Section 28 Sub-section (2)(b) and Section 24(1)(d) as it existed
on the statute-book prior to 31.1.1974 makes it clear that from 31.1.1974, the
legislature did not think it fit to the clothe the State Bar Councils with the power to
prescribe any pre-enrolment training and examination to be undergone by an applicant
for enrolment as an "advocate" on the State Roll. As Clause (d) was deleted from
Section 24(1), simultaneously the rule-making power earlier conferred on the State Bar
Councils for effective exercise of that statutory function also stood withdrawn. Meaning
thereby, from 31.1.1974, any person who had a requisite Law Degree as laid down by
Section 24 Sub-section (1), became entitled to be enrolled as an "advocate" on the
State Roll maintained by the State Bar Council and he was not required to undergo any
such pre-enrolment training which he was required to undergo prior to 31.1.1974. It is
also pertinent to note that Sub-section (3) of Section 24 had remained operative from
1964 onwards all throughout till 1974 simultaneously with the then existing power of
the State Bar Councils to prescribe pre-enrolment training and examination to be
undertaken by the applicants desirous of being enrolled as advocates. When both these
provisions simultaneously existed on the statute-book from 1964 to the beginning of
1974, it becomes obvious that the question of prescribing pre-enrolment training and
examination to be undertaken by an application for being enrolled as an advocate on
the State Roll, remained solely in the domain of the State Bar Councils concerned and
the Bar Council of India had nothing to do on this aspect of the matter. Consequently
Section 24(3) dealt with a topic not covered by the sweep of Section 24(1), especially
Clause (d) thereof. The next relevant Section for our present purpose is Section 29,
which is found in Chapter IV dealing with the "right to practise". The "right to practise"
naturally is available to those advocates who are enrolled under the Act and whose
names are mentioned in the State Roll as per Section 17 of the Act. A new entrant to the
legal profession obviously would be an ordinary advocate and not a Senior Advocate.
But only two types of advocates are contemplated by Section 17 Sub-section (2) of the
Act as seen earlier. An "Advocate" can either be a Senior Advocate or a non-Senior
Advocate, meaning thereby, other advocate. The moment a person enrolled as an
"advocate" on the State Roll, he would become statutorily entitled to practise as laid
down under Section 17 which provides under Sub-section (1):
17. (1) Every State Bar Council shall prepare and maintain a Roll of Advocates
in which shall be entered the names and addresses of:
(a) all persons who were entered as advocates on the roll of any High
Court under the Indian Bar Councils Act, 1926 (38 of 1926),
immediately before the appointed day [including persons, being
citizens of India, who before the 15th day of August, 1947, were
enrolled as advocates under the said Act in any area which before the
said date was comprised within India as defined in the Government of
India Act, 1935, and who at any time] express an intention in the
prescribed manner to practise within the jurisdiction of the Bar Council;

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 (b) all other persons who are admitted to be advocates on the roll of
the State Bar Council under this Act on or after the appointed day.
Section 30, which up till now has not come into force, lays down:
30. Subject to the provisions of this Act, every advocate whose name is entered
in the [State Roll] shall be entitled as of right to practise throughout the
territories to which this Act extends,-
(i) in all courts including the Supreme Court;
(ii) before any tribunal or person legally authorised to take evidence;
and
(iii) before any other authority or person before whom such advocate is
by or under any law for the time being in force entitled to practise.
So far as Clause (i) of Section 30 is concerned, it is not in dispute that even though the
main Section has not come into force, all persons who are enrolled as advocates on the
State Roll are entitled as of right to practise in all courts, including the Supreme Court
and no one has challenged their said right. Whether such enrolled advocates can
practise in tribunals or any other authority would remain a moot question in the
absence of bringing into force Section 30. Section 32 deals with the "power of the court
to permit appearances in particular cases by persons not enrolled as advocates.'" That
power of the Court obviously is not touched by the impugned Rules, as fairly stated by
learned Senior Counsel, Shri P.P, Rao for the Respondent-Bar Council of India. Then
follows Section 33 which deals with "the right to practise conferred on the advocates'*
and lays down:
33. Except as otherwise provided in this Act or in any other law for the time
being in force, no person shall, on or after the appointed day, be entitled to
practise in any court or before any authority or person unless he is enrolled as
an advocate under this Act.
A conjoint reading of Sections 23, 29 and 33 leaves no room for doubt that once a
person is found qualified to be admitted as an advocate on the State Roll having
satisfied the statutory conditions of eligibility laid down in Sub-section (1) of Section
24, he will automatically become entitled as of right to practise full-fledged in any court
including the Supreme Court. Next follows Section 34 Sub-section (1) which provides:
34. (1) The High Court may make rules laying down the conditions subject to
which an advocate shall be permitted to practise in the High Court and the
courts subordinate thereto.
This rule-making power of the High Court operates on its own and cannot be pressed
into service by the Bar Council of India for effectively providing the authorship of their
impugned Rules and, therefore, we need not dilate on the same any further. The next
relevant section is Section 49. This is the section which lays down the rule-making
power of the Bar Council of India and is the sheet-anchor of the Respondent-Bar council
of India for supporting the impugned Rules. It is, therefore, necessary to note the
relevant provisions of this section. Section 49 Sub-section (1) provides:
49. (1) The Bar Council of India may make rules for discharging its functions
under this Act, and, in particular, such rules may prescribe:

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 ***
[(af) the minimum qualifications required for admission to a course of
degree in Law in any recognised university;]
(ag) the class or category of persons entitled to be enrolled as
advocates;
(ah) the conditions subjects to which an advocate shall have the right
to practise and the circumstances under which a person shall be
deemed to practise as an advocate in a court;]
***
Before considering the next relevant section, it is necessary to note that Clause (af), as
it stands in the present form in Section 49(1), was substituted by Act 60 of 1973 by
Section 38 thereof with effect from 31.1.1974. Prior thereto, Clause (af) which was in
force from 1964 onwards, read as under:
49. (af) the category of persons who may be exempted from undergoing a
course training and passing an examination prescribed under clause (d) of Sub-
section (1) of Section 24;
It, therefore, becomes clear that from 1964 till the end of 1973, the Bar Council of India
had rule-making power to exempt those persons who were otherwise required to
undergo pre-enrolment training and passing an examination as prescribed by the State
Bar Councils under Section 24(1)(d) as it stood on the statute-book during that time.
So the power of exemption from undergoing the training to applicants for enrolment as
advocates was with the Bar Council of India, while the power to prescribe training and
examination solely rested with the State Bar Councils concerned. Once the legislature by
Act 60 of 1973 deprived the State Bar Councils of their rule-making power to prescribe
training and examination in view of deletion of Clause (d) of Sub-section (1) of Section
24 from the parent Act, the rulemaking power exempting categories of persons from
pre-training and pre-examination prior to enrolment as earlier available to the Bar
Council of India was also withdrawn and Clause (af) in the present form got substituted
with effect from 31.1.1974. Clauses (ag) and (ah) were already inserted in Section 49
by Act 21 of 1964 and they have continued to exist on the statute-book all throughout
till date. These topics of rule-making power existed with the Bar Council of India at the
same time when the provision regarding pre-service training and examination as a
condition of enrolment existed on the statute-book under Section 24(1)(d). In other
words, from 1964 to the end of 1973, i.e., till 31.1.1974, the topic of prescription of
pre-enrolment training and pre-enrolment examination which remained strictly in the
domain of the State Bar Councils remained excluded from the rule-making powers
provided by Clauses (ag) and (ah) of Section 49 so far as the Bar Council of India was
concerned. It is axiomatic that these general rule-making powers in Clauses (ag) and
(ah) of Section 49necessarily did not take in their sweep the power to provide for pre-
enrolment training and examination for applicants who were seeking enrolment as
advocates under the Act from 1964 to the end of 1973. It is easy to visualise that the
legislature itself dispensed with the concept of pre-enrolment training and examination
for new entrants to the Bar with effect from 31.1.1974. As noted earlier, this was done
on the recommendation of the Bar Council of India itself. Under these circumstances, it
cannot be presumed that the same legislature without expressly including the same
topic in the rule-making power of the Bar Council of India, impliedly permitted the Bar
Council of India itself to prescribe pre-enrolment training to new entrants at the Bar

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simultaneously with the withdrawal of the same training from 1974 onwards. It is
difficult to countenance the submission of Shri Rao for the Respondent-Bar Council of
India that there was any concurrent power to prescribe pre-enrolment training to
applicants both with the State Bar Councils and the Bar Council of India between 1964
and the end of 1973. The next relevant section for our purpose is Section 49-A, which
deals with the power of the Central Government to make rules. Sub-section (1) lays
down:
49-A. (1) The Central Government may, by notification in the Official Gazette,
make rules for carrying out the purposes of this Act including rules with respect
to any matter for which the Bar Council of India or a State Bar Council has
power to make rules.
Thus, powers of the Central Government to make rules are parallel to the powers to
make rules available to the Bar Council of India or the State Bar Councils under the very
same Act. Sub-section (2) of Section 49-A, as it stood prior to 31.1.1974, provided
amongst others, by Clause (d) thereof, rule-making power in connection with the
category of persons who were exempted from undergoing a course of training and
passing an examination prescribed under Clause (d) of Sub-section (1) of Section 24. It
becomes obvious that this provision had become otiose as it sought to exempt the
category of persons from the sweep of compulsory pre-enrolment training and
examination being a condition for enrolment as advocates under the then existing
Clause (d) of Sub-section (1) of Section 24 which was deleted from the statute-book
from 1974 onwards. Thus, from 1974, there will be no occasion for the Central
Government to exercise power of exemption for such category of persons earlier
covered by Section 24(1) (d). However, it may be noted that Section 49-A Sub-section
(2)(c) entitles the Central Government to frame rules regarding the class or category of
persons entitled to be enrolled as advocates under the Act. It is on the same line as the
rule-making power of the Bar Council of India under Section 49 Sub-section (1) Clause
(ah). We may note at this stage that the Central Government has not exercised any rule-
making power regarding pre-enrolment training for prospective advocates. We,
therefore, need not dilate on this aspect any more. The last relevant section is Section
52 which deals with "saving" and it lays down:
52. Nothing in this Act shall be deemed to affect the power of the Supreme
Court to make rules under Article 145 of the Constitution:
(a) for laying down the conditions subject to which a Senior Advocate
shall be entitled to practise in that Court;
(b) for determining the persons who shall be entitled to [act or plead]
in that Court.
14. It is in the background of the aforesaid statutory scheme of the Act, as subjected to
various amendments from time to time till date, that the moot question posed for our
consideration about the legal efficacy of the impugned Rules will have to be examined.
15. It becomes, therefore, necessary- to have a close look at the impugned Rules as
amended by the resolution of the Bar Council of India dated 19.7.1998. These Rules
styled as the Bar Council of India Training Rules, 1995 provided for certain
preconditions to be complied with by an applicant to be enrolled on the roll of the State
Bar Council. The Rules are said to have been promulgated in exercise of the Bar Council
of India's rule-making powers under Section 24(3)(d) of the Act. However, Shri Rao,
learned Senior Counsel for the Respondent-Bar Council of India, is right when he

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contends that he can also sustain the Rules under any other legally permissible rule-
making power discernible from the relevant provisions of the Act. Rule 2 of the
impugned Rules provides:
2. No person shall be entitled to be enrolled as an advocate unless he is eligible
to be enrolled as such under Section 24 of the Advocates Act, 1961 and has
undergone training as prescribed under these Rules.
The said Rule 2, as amended up to 19.7.1998 further reads:
However, while undergoing training, the trainees shall be enrolled provisionally
as 'trainee advocates' after approval of the names of their guides by the State
Bar Council and the State Bar Council shall issue identity card to the said
provisionally enrolled 'trainee advocates' for their identification.
Detailed procedure has been laid down as to how a trainee advocate has to function
during the period of training. Such candidate has to maintain two types of diaries as
approved by the State Bar Council - one for the work done in the chambers and the
other for the work in the courts. As per Rule 4, the training period shall commence from
the certificate of guide that the candidate is being trained by him. Rule 5 deals with
"qualification of advocate to become guide of such trainees". Rule 7 deals with "period
of training for a minimum of one year". Rule 10 provides:
10. No candidate shall engage himself in any employment, profession,
business, trade or calling during the course of training in any manner.
Rule 15 lays down "seniority of a trainee advocate on successful completion of the
training period" by providing that he shall be entitled to seniority from the date of
provisional enrolment as a trainee under the Rules. Such a trainee advocate as per Rule
15(b) shall be entitled to appear in the court for seeking adjournments and to make
mentioning on instruction of their guide and shall be under disciplinary control of the
State Bar Council and the Bar Council of India. Rule 15-AA provides that "in case period
of training of a particular candidate is extended by the State Bar Council under Rule 9
on the ground of inadequate training, the said extended period shall not be counted
towards seniority."
16. It becomes at once clear that the impugned Rules are said to have been framed by
the Bar Council of India in exercise of its statutory powers under Section 24(3) (d) of
the Act. We have already traced the history of the aforesaid statutory provisions. It is no
doubt true that Sub-section (3) of Section 24 starts with a non obstante clause and
provides that notwithstanding anything contained in Sub-section (1), a person
mentioned in categories (a), (aa), (c) and (d) may be admitted as an advocate on a
State Roll if he applies as laid down in Clause (1) and fulfils the conditions specified in
Clauses (a), (b), (e) and (f) of Sub-section (1). The Objects and Reasons for enacting
the said provision, as noted earlier, have clearly laid down that it was felt by the
legislature that despite the operation of Sections 17 and 24 of the Act, there were some
persons who though not covered by the said provision and had not satisfied the
conditions for enrolment as laid down in these provisions deserved to be enrolled as
advocates. With that end in view, the Bar Council of India was provided with the rule-
making power under Sub-section (3)(d) of Section 24 by way of an enabling provision
to extend the statutory coverage of Section 24(1) for bringing in such otherwise
ineligible candidates for enrolment and even for such additional class of persons to be
enrolled as advocates by exercise of the rulemaking power of the Bar Council of India,
they had to satisfy the statutory requirements of Clauses (a), (b), (e) and (f) of Sub-

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section (1) of Section 24. This enabling provision available to the Bar Council of India
by rules to extend the scope of eligibility in favour of those who were ineligible under
Section 24(1) to be enrolled as advocates did not touch upon the question of eligibility
in connection with pre-enrolment training and examination or to put it differently, the
enabling power available to the Bar Council of India to make eligible otherwise
ineligible persons for enrolment as advocates under Section 24(1) did not cover the
question of pre-enrolment training and examination at all. It must, therefore, be held on
the express language of Section 24 Sub-section (3)(d) that the rule-making power of
the Bar Council of India proceeded only in one direction, namely, for bringing into the
sweep of Section 24(1), all those who were not entitled to be enrolled as advocates
under the provisions of Section 24(1). The non obstante clause with which Sub-section
(3) of Section 24 starts provides that despite the conditions mentioned for enrolment in
Sub-section (1) of Section 24 having not been satisfied by the person concerned, if the
Bar Council of India thought that such a person also deserved to be enrolled as an
advocate, then the rule-making power under Clause (d) of Sub-section (3) of Section 24
could be resorted to by the Bar Council of India. The said power, to say the least, could
be utilised for making ineligible persons eligible for enrolment despite what is stated
under Sub-section (1) of Section 24 but it could never be utilised in the reverse
direction for disqualifying those from enrolment who were otherwise qualified to be
enrolled as per Sub-section (1) of Section 24. It was a power given to the Bar Council
of India to extend the coverage of Section 24(1) and not to whittle it down. It is,
therefore, difficult to appreciate the contention of learned Senior Council. Shri Rao for
the Bar Council of India that by exercise of the said Rule, it could impose a further
condition of disability of an otherwise eligible candidate to be enrolled even if he had
satisfied all the statutory conditions laid down by Section 24 Sub-section (1). To
illustrate the nature of such rule-making power and the limited scope thereof, it may be
visualised that as per Section 24 Sub-section (1) Clause (c). unless a person has
obtained the degree of Law from any recognised university in India, he would not be
entitled to be enrolled as an advocate. Still the Bar Council o India in its wisdom and
discretion by exercising its enabling rulemaking power under Section 24 Sub-section
(3)(d) read with Section 49(1) may permit a citizen of India who might have obtained a
degree from a foreign university like a Law Degree from England or a Law Degree from
Harvard Law School of America or a Law Degree from a Canadian or Australian
University to be enrolled as an advocate. Such category of persons who could not have
been enrolled on the express language of Section 24(1) could be enrolled by the State
Bar Councils under Section 24(3)(d) if the Bar Council of India in exercise of its rule-
making power had covered them for such enrolment. It is this beneficial and enabling
power for bringing in the sweep of the umbrella of Section 24(1) those who would have
otherwise been out of it which is conferred by Sub-section (3)(d) of Section 24 on the
Bar Council of India read with Section 49(1). It is also necessary to note that this power
is available to the Bar Council of India from 1964 all throughout till date, while between
1963 and January 1974, pre-enrolment training and examination could be prescribed as
a condition by the State Bar Councils as per the then existing condition (d) of Sub-
section (1) of Section 24 for such enrolment. Consequently, it cannot be said that the
rulemaking power under Sub-section (3)(d) of Section 24 still enables the Bar Council
of India, after deletion of Section 24(1)(d) to promulgate such a Rule by which almost
by the back door such an additional condition for enrolment to restrict the entry of
otherwise eligible candidates for enrolment under Section 24(1) can be imposed.
Consequently. Section 24 Sub-section (3)(d) of the Act cannot be legitimately invoked
by the Bar Council of India for sustaining the impugned Rules.
17. We may also mention one additional submission of Senior Advocate, Shri P.P. Rao
in support of the impugned Rules. He contended that Section 24(1) of the Act itself

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enables the rule-making authorities to enact rules which may go beyond the statutory
provisions of Section 24(1) as enacted by the legislature and, therefore, the Bar Council
of India as a rule-making authority can by exercise of the said power add to the
conditions of enrolment as expressly laid down by Section 24(1). It is not possible to
agree with this submission for the simple reason that Section 24 itself contemplates the
qualifications of a person who seeks admission as an advocate on the State Roll. To
reiterate granting of admission of a person for being enrolled as an advocate under the
Act is a statutory function of the State Bar Council only. The Bar Council of India has no
role to play on this aspect All it has to do is to approve any rules framed by the State
Bar Council under Section 24(1) laying down further qualifications for a person to be
enrolled by it on the State Roll as an advocate. We have, therefore, to read the rule-
making power mentioned under Section 24(1) conjointly with the rule-making power of
the State Bar Council as provided by Section 28(1) especially clause 2(d) thereof which
provides as under:
28. (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 provides for:
(a)-(c)
(d) the conditions subject to which a person may be admitted as an
advocate on any such roll.
18. Consequently, the submission of Shri P.P. Rao, learned Senior Counsel for the Bar
Council of India that the Council also can exercise rule-making power under Section
24(1) for imposing an additional condition of qualification for a person to be enrolled
on the State Roll obviously cannot be accepted.
19. Shri Rao then next turned to Section 7 of the Act and submitted that amongst the
enumerated functions of the Bar Council of India, at Clause (h) of Sub-section (1) is
specified a provision regarding promoting 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. It is difficult to appreciate how the aforesaid Clause (h) can
also give any support to the impugned Rules. Shri Rao, learned Senior Counsel for the
Bar Council of India is right when he contends that the concept of "legal education" is
not necessarily confined to only classroom lectures or theoretical study of Law. It can
include practical training of prospective advocates. But even accepting that legal
connotation of the term "legal education", the question remains as to how the Bar
Council of India can promote legal education. It can obviously promote legal education
by laying down standards of such education in consultation with the respective
universities of 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 Par 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 the legal profession by getting enrolled under

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Section 24 of the Act. The history of this relevant provision spread over years shows
that pre-enrolment training and examination constitute a topic which the legislature in
its wisdom entrusted to the State Bar Councils and not to the Bar Council of India.
Merely because the legislature withdrew even that rule-making power in the light of the
withdrawal of the statutory condition of enrolment by enacting (sic omitting) Section
24(1) (d) from 31.1.1974, it could not be said that the then existing rule-making power
on other topics which was available to the Bar Council of India got enlarged or
elongated by necessary implication. The power, as couched in the same earlier existing
terms, has remained as it is after deletion of Section 24(1)(d) by Parliament. It is also
to be noted that the functions of the Bar Council of India under Section 7 were not
enlarged to cover such a provision for pre-enrolment training to applications 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 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).
Consequently, the support of Section 7(1) as tried to be invoked for sustaining the
impugned Rules also is of no avail to learned Senior Counsel, Shri Rao for the
Respondent-Bar Council of India.
20. We may now refer to Section 49 of the Act, which deals with the general power of
the Bar Council of India to make rules. Sub-section (1) thereof lays down that the Bar
Council of India may make rules for discharging its functions under this Act, and, in
particular, such rules may prescribe on various topics as enumerated therein from
Clauses (a) to (j). A mere look at the aforesaid provision makes it clear that the rule-
making power entrusted to the Bar Council of India by the legislature is an ancillary
power for fructifying and effectively discharging its statutory functions laid down by the
Act. Consequently, rules to be framed under Section 49(1) must have a statutory peg on
which to hang. If there is no such statutory peg, the rule which is sought to be enacted
dehors such a peg will have no foothold and will become stillborn. The statutory
functions entrusted by the legislature to the Bar Council of India under the Act so far as
relevant for our present purpose and which could be relied upon by Shri Rao, learned
Senior Counsel for the Respondent-Bar Council of India, are Section 7(1)(h) and
Section 24(3)(d). We have seen earlier that neither of these statutory provisions entitles
the Bar Council of India to provide for the disqualification or a disability or an
additional condition for enrolment of a person who is otherwise eligible to be enrolled
as an advocate under Section 24(1). Once that conclusion is reached, the very
foundation for supporting the impugned Rules gets knocked off. Consequently, if any
such rule is framed, supposedly by exercise of the rule-making power as enumerated in
Section 49(1)(af), (ag) of (ah) on which also reliance was placed by Shri Rao, the said
rule having not been made for discharging any of the statutory functions of the Bar
Council of India in this connection must necessarily fail as it would be ultra vires the
statutory functions of the Bar Council of India. Any rule framed by the rule making
authority going beyond its statutory functions must necessarily be held to be ultra vires
and inoperative at law. Consequently, the valiant attempt made by Shri Rao for
sustaining the Rules under Section 49(1)(af), (ag) and (ah) would remain abortive only
on this short ground.
21. But even that apart, let us see whether any of these provisions can sustain the
impugned Rules even on the assumption that such an exercise otherwise remains a
permissible one for the Bar Council of India. Section 49(1)(af) deals with the minimum
qualifications required for admission to a course of degree in Law in any recognised
university. That obviously has nothing to do with the impugned Rules. Then comes

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Clause (ag) which deals with the class or category of persons entitled to be enrolled as
advocates. To recapitulate, Section 49(1)(ag) was already on the statute-book since
1964 till January 1974 when the topic of pre-enrolment training and examination was
solely within the domain of the State Bar Councils and once on the said topic the State
Bar Council concerned had framed the requisite Rules, they were then subject to
approval by the Bar Council of India. Therefore, there was a complete code in this
connection. Once the State Bar Councils framed such rules and got them approved by
the Bar Council of India, then because of the thrust of the parent provision of Section
24(1)(d) which was operative at that time, it became a precondition for enrolment.
There cannot be two parallel preconditions of enrolment which can be simultaneously
imposed, one under Section 24(1)(d) by the State Bar Council concerned by exercise of
its powers under Section 28(2)(b) which existed on the statute-book between 1964 to
January 1974 and also the possible provisions for imposing such preconditions for
enrolment by the Bar Council of India taking resort to the supposed wide wordings of
Section 49(1) (ag) during the very same period as during that period Section 24(1)(d),
Section 28(2)(b) and Section 49(1)(ag) conjointly existed on the statute-book.
22. If such a concurrent power is envisaged by Section 49(1)(ag), then the Bar Council
of India instead of being an approving authority at the relevant time would itself
become a prescribing authority in connection with pre-enrolment training. It has also to
be kept in view that on the scheme of the Act, enrolment of advocates is the task of the
State Bar Councils and not of the Bar Council of India.
2 3 . It must, therefore, be held mat the rulemaking power contemplated by the
legislature under Section 49(1)(ag) for being exercised by the Bar Council of India was
pertaining to only those classes or categories of persons who were thought fit to be
enrolled as advocates though they might not be eligible to be enrolled under Section
24(1) of the Act as it stood on the statute-book. In other words, this enabling rule-
making power only by which the Bar Council of India could add to the category of
eligible persons for enrolment which would have otherwise remained outside the sweep
of the statutory scheme of eligibility for enrolment as laid down by Section 24(1), did
not contemplate any power to curtail the existing eligibility of the applicants under
Section 24(1) for enrolment as advocates. It is only for such additional class or
category of persons that the enabling provision as per the said rule-making power could
be available to the Bar Council of India. It is difficult to appreciate how by any process
of interpretation an enabling provision can be treated as a restrictive one. In fact, on a
conjoint reading of Section 24(3)(d) and Section 49(1)(ag), the conclusion becomes
inevitable that the Bar Council of India in exercise of its statutory function entrusted to
it under Sub-section (3)(d) of Section 24 can frame a suitable rule for bringing in the
umbrella of the enrolment provision those who otherwise would have remained outside.
The rule-making power under Section 49(1)(ag) has to take colour from the statutory
function entrusted to the Bar Council of India by Section 24(3)(d). As we have already
held that Section 24(3)(d) does not enable the Bar Council of India to impose additional
restrictions on the eligibility of an applicant who seeks enrolment as per Section 24(1)
by necessary implication power under Section 49(1)(ag) also cannot enable such an
impermissible exercise. The rule-making power under Section 49(1)(ag) is ancillary to
the statutory function entrusted to the Bar Council of India by Section 24(3)(d) and it
cannot travel beyond the said statutory sphere.
24. So far as Section 49(1)(ag) is concerned, it has also to be kept in view, as noted
earlier, that Section 24(3)(d) and Section 49(1)(ag) were simultaneously introduced in
the Act in 1964. At that time there were specific provisions regarding pre-enrolment
training under Section 24(1)(d) and Section 28(2)(b). Thus, the enactment of Section

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24(3)(d) and Section 49(1)(ag) could never have been intended to include implied
power/function to make pre-enrolment training rules and that too by the Bar Council of
India which had nothing to do at the initial stage of enrolment of advocates on the State
Rolls. In this connection, it is also useful to refer to Section 49(1)(ag) with Section 29
of the Act. Section 29 in terms provides as under:
29. Subject to the provisions of this Act and any rules made thereunder. There
shall, as from the appointed day, be only one class of persons entitled to
practise the profession of Law, namely, advocates.
25. Section 49(1)(ag) also deals with the class or category of persons entitled to be
enrolled as advocates. Thus, by the said provision, the Bar Council of India in exercise
of its rule-making power can add to the class of persons contemplated by Section 29 by
enlarging the said class of advocates entitled to practise as full-fledged advocates.
Entitlement to practise the profession of Law necessarily means full-fledged entitlement
to plead and argue cases of their clients before the courts of law. There cannot be any
truncated right to practise the profession of Law which is sought to be culled out by
Shri P.P. Rao, learned Senior Counsel for the Bar Council of India on a conjoint reading
of Section 29 and 49(1)(ag) of the Act.
2 6 . That takes us to the last provision on which reliance was placed by Shri Rao,
learned Senior Counsel for the Respondent. That is Section 49(1)(ah). A mere look at
the said provision shows that it confers rule-making power on the Bar Council of India
to prescribe conditions subject to which an advocate shall have the right to practise and
the , circumstances under which a person shall be deemed to practise as an advocate in
a court. It is, therefore, obvious that once a person has been enrolled as an advocate
under the Act, his right to practise can be made subject to certain conditions if the Bar
Council of India seeks to impose such conditions on an enrolled advocate. In other
words, rule-making power under Section 49(1)(ah) deals with a situation which is post-
enrolment of an advocate and does not deal with pre-enrolment situation for a
candidate seeking enrolment. The impugned Rules provide for pre-enrolment training. It
is true that the Rules also provide for provisional enrolment. But provisional enrolment
envisaged by the Rules is totally dehors the scheme of the Act. To recall enrolment of
advocates is a function entrusted by the legislature to the State Bar Councils and not to
the Bar Council of India. Section 17 read with Section 24 leaves no room for doubt that
a person who seeks enrolment as an advocate has to show his eligibility to be brought
on the State Roll of Advocates. A State Roll of Advocates has to be maintained only by
the State Bar Council. Consequently, there would remain no occasion for the Bar
Council of India to provide for a condition of pre-enrolment training. The State Bar
Councils alone could provide for pre-enrolment training till Section 24(1)(d) was on the
statute-book up to January 1974. After an advocate is enrolled as a full-fledged
advocate, how his right to practise to be conditioned may be made a subject-matter of
the rule-making power of the Bar Council of India as per Section 49(1)(ah). But in the
facts of the present case, the aforesaid provision cannot be of any help to the
Respondent-Bar.... Council of India for sustaining the impugned Rules for two obvious
reasons: Firstly, provision for pre-enrolment training of prospective advocates is not
entrusted by the legislature to the Bar Council of India while laying down its statutory
functions under Section 7, as seen earlier. Therefore, the very first part of Section 49
will hit the said Rule as it would not be a Rule for discharging the statutory function of
the Bar Council of India. But there is still a second cogent reason for showing that
Clause (ah) of Sub-section (1) of Section 49 cannot support the impugned Rules. The
said Rules do not seek to regulate the right of practice available to an already enrolled
full-fledged advocate. The entertainment of an enrolled advocate is to be culled out

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from a conjoint reading of Sections 17, 24(1) and the definition of advocate as found in
Section 2(1)(a). Once a person is enrolled as an advocate, how the right to practise of
such enrolled advocate can be regulated or monitored may legitimately from the
subject-matter of a rule framed under Section 49(1)(ah). But the impugned Rules by
providing the concept of a trainee advocate with only a limited right to ask for
adjournment and mentioning the cases of his guide totally violate the scheme of the
Act. Section 17 Sub-section (2) of the Act lays down that there can be only two classes
of advocates; Senior Advocates and non-senior or ordinary advocates. It is difficult to
appreciate how a trainee advocate's class can be created by exercising the supposed
rule-making power of the Bar Council of India under Section 29(1)(ah). It is also
interesting to note that the Bar Council of India itself in exercise of its rule-making
power under Section 49(1)(ah) has framed the Rules laying down conditions under
which an enrolled advocate may not be permitted to practise or may be suspended from
practice or when he can resume practice. Shri Rao, learned Senior Counsel for the
Respondent was right when he contended that even though such Rules might have been
framed in the past, if the rule-making power inheres in the Bar Council of India, then
such power can be exercised from time to time by framing additional rules. However,
the question is whether Section 49(1)(ah) confers such a power on the Bar Council of
India. So far as this question is concerned, it has stood answered against the
Respondent-Bar Council of India by a three-Judges Bench judgment of this Court
reported in Indian Council of Legal Aid & Advice. A.M. Ahmadi, C.J. speaking for the
three-Judges Bench, had to consider in the said decision, the question whether the Bar
Council of India could frame a rule restricting the enrolment of advocates to the State
Roll to only those who had not completed 45 years of age. Holding such rule to be ultra
vires the powers of the Bar Council of India under the Act, it was held that such a rule
could not be sustained under Section 49(1)(ah), as the said provision dealt with a
situation after the enrolment of advocates and could not take in its sweep any situation
prior to their enrolment. Sri Rao, learned Senior Counsel for the Respondent-Bar
Council of India tried to salvage the situation by submitting that the said decision was
per incuriam on the ground that Section 24(3)(d) was not noticed. We have already
held that Section 24(3)(d) is the provision which permits the Bar Council of India by
exercise of the rule-making power to make an otherwise ineligible person eligible for
enrolment and does not act in the reverse direction to make an otherwise eligible
person ineligible. Once that conclusion is reached, Section 24(3)(d) becomes totally
irrelevant for deciding the question whether the Rule impugned before the three-Judges
Bench in that case could have been sustained by the Bar Council of India by taking
resort to Section 24(3)(d). Non-consideration of such irrelevant provision, therefore,
cannot make the ratio of the decision in the aforesaid case per incuriam. The second
ground on which Sri Rao tried to submit that the said decision was per incuriam was by
inviting our attention to a Constitution Bench judgment of this Court in Lily Isabel
Thomas, Re case. Now it must be kept in view that the said decision was rendered in
connection with an entirely different statutory scheme. Section 52 of the Act, as noted
earlier, saves power of the Supreme Court to make rules under Article 145 of the
Constitution of India for determining persons who are eligible to practise before the
Supreme Court. Thus, the constitutional power of the Supreme Court for regulating the
working of advocates in the Supreme Court for regulating the working of advocates in
the Supreme Court who were otherwise entitled to practise in any court in India under
the Act could be validly exercised When we turn to the constitutional power of the
Supreme Court under Article 145, we find clearly mentioned therein that subject to the
provisions of any law made by Parliament, the Supreme Court may from time to time,
with the approval of the President, make rules for regulating generally the practice and
procedure of the Court including rules as to the persons practising before the Court. As

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Section 52 of the Act has expressly saved the powers of the Supreme Court under
Article 145 for determining the persons who shall be entitled to practise and plead
before the Supreme Court, Article 145 could operate on its own without any better
being imposed by any statutory law enacted by Parliament. Accordingly, in the light of
Article 145, a question arose before the Constitution Bench in the aforesaid case,
whether the Supreme Court was competent to enact a rule in connection with advocates
practising before it, who could act as an Advocate-on-Record subject to their passing
examination as laid down under the Rules. The term "persons practising before the
Court''' as laid down by Article 145(1)(a) in connection with such rulemaking power was
interpreted to take in its sweep not only persons actually practising but even entitled to
practise before the Supreme Court. In this connection, the phraseology found in the
Union List in the 7th Schedule of the Constitution in Entry 77, namely, persons entitled
to practise before the Supreme Court was held to be in pari materia with the phrase
"persons practising before the Court" as found in Article 145(1)(a). In the light of the
aforesaid wide sweep of Article 145(1)(a) expressly saved by Section 52 of the Act, it
was held that the Rule laying down examination to be undergone by practising
advocates before the Supreme Court before they could act as Advocates-on-Record was
within the rule-making power of the Supreme Court. It is difficult to appreciate how the
aforesaid decision of the Constitution Bench rendered in the light of an entirely different
constitutional scheme can be of any assistance to the Bar Council of India in the present
case. For sustaining the rule-making power of the Bar Council of India, the express
provisions of Section 7 and Section 24(3)(d) read with Section 49(1)(ah) would be the
only relevant provisions which were considered by this Court in a three-Judges Bench
judgment in Indian Council of Legal Aid & Advice case. The ratio of the Constitution
Bench judgment rendered in connection with an entirely different question posed for
decision in the light of the relevant provisions of the constitutional scheme dealing with
the rulemaking power of the Supreme Court under Article 145, therefore, cannot be said
to be laying down anything contrary to what the three-Judges Bench judgment laid
down in connection with this very statutory scheme which squarely arises for
consideration in the present case. Hence, even the second ground canvassed by learned
Senior Counsel, Shri Rao for the Bar Council of India for whittling down the binding
effect of the aforesaid three-Judges Bench judgment of this Court, cannot be sustained.
2 7 . We may at this stage note one submission of Shri C.S. Vaidyanathan, learned
Additional Solicitor General. He contended that the impugned Rules 15-A to 15-C at
least can be sustained under the rule-making power of the Bar Council of India under
Section 49(1)(ah) of the Act. It is not possible to agree with this contention for the
simple reason that by the impugned Rules, no training is prescribed subsequent to
enrolment under the Act. Rules seek to impose pre-enrolment training, as note earlier.
Consequently, such a rule cannot be sustained under the aforesaid provision as clearly
ruled by a three-Judges Bench judgment of this Court in Indian Council of Legal Aid &
Advice case. Even that apart a close look at Section 49(1)(ah) clearly shows that the
said provision enables the Bar Council of India to lay down conditions subject to which
an advocate who has already got enrolled can have a right to practise. Right to practise
as available to an advocate duly enrolled under the Act is a full-fledged right to practise
which, as noted earlier, would include not only seeking adjournments but also to plead
and argue for the client for whom he appears before the Court. Thus, any truncating of
the very right to practise itself in exercise of the rule-making power under Section 49(1)
(ah) by creating a new class of trainee advocates cannot be sustained by the said
provision. All that the said provision enables the Bar Council of India to do is to frame a
rule under the said provision which may impose conditions subject to which an enrolled
advocate can carry on his full-fledged practice as an advocate. In this connection, it is
profitable to look at the very Rules earlier enacted by the Bar Council of India under

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Section 49(1)(ah) of the Act. They are found in Part VI Chapter III of the Bar Council of
India Rules. We have already referred to the gist of these Rules earlier. However, it will
be profitable to extract these Rules in extenso to highlight the scope and ambit of the
rulemaking power vested in the Bar Council of India under Section 49(1)(ah) as until
now understood by the very same rule-making authority:
CONDITIONS FOR RIGHT TO PRACTISE
1. Every advocate shall be under an obligation to see that his name appears on
the roll of the State Council within whose jurisdiction he ordinarily practices.
Provided that if an advocate does not apply for transfer of his name to
the roll of the State Bar Council within whose jurisdiction he is
ordinarily practising within six months of the start of such practice, it
shall be deemed that he is guilty of professional misconduct within the
meaning of Section 35 of the Advocates Act.
2. An advocate shall not enter into a partnership or any other arrangement for
sharing remuneration with any person or legal practitioner who is not an
advocate.
3. Every advocate shall keep informed the Bar Council on the roll of which his
name stands, of every change of his address.
4. The Council or a State Council can call upon an advocate to furnish the name
of the State Council on the roll of which his name is entered, and call for other
particulars.
5.(1) An advocate who voluntarily suspends his practice for any reason
whatsoever, shall intimate by registered post to the State Bar Council on the
rolls of which his name is entered of such suspension together with his
certificate of enrolment in original.
(2) Whenever any such advocate who has suspended his practice desire to
resume his practice, he shall apply to the Secretary of the State Bar Council for
resumption of practice, along with an affidavit stating whether he has incurred
any of the disqualifications under Section 24-A Chapter III of the Act during the
period of suspension.
(3) The Enrolment Committee of the State Bar Council may order the
resumption of his practice and return the certificate to him with necessary
endorsement. If the Enrolment Committee is of the view that the advocate has
incurred any of the disqualifications the Committee shall refer the matter under
proviso to Section 26(1) of the Act.
(4) On suspension and resumption of practice the Secretary shall act in terms
of Rule 24 of Part IX.
6.(1) An advocate whose name has been removed by order of the Supreme
Court or a High Court or the Bar Council, as the case may be, shall not be
entitled to practise the profession of Law either before the Court and authorities
mentioned under Section 30 of the Act, or in chambers, or otherwise.
(2) An advocate who is under suspension, shall be under same disability during
the period of such suspension as an advocate whose name has been removed

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 from the roll.
7. An officer after his retirement or otherwise ceasing to be in service shall not
practise for a period of two years in the area in which he exercise jurisdiction
for a period of 3 years before his retirement or otherwise ceasing to be in
service.
Resolved that nothing in these Rules shall prevent any such person from
practising in any court or tribunal or authority of superior jurisdiction to one in
which he held office.
Explanation.- 'Officer' shall include a Judicial Officer, Additional Judge of the
High Court and Presiding Officer or Member of the Tribunal or authority or such
other officer or authority as referred to in Section 30 of the Act. 'Area' shall
mean area in which the person concerned is exercising jurisdiction.
8. No advocate shall be entitled to practise if in the opinion of the Council he is
suffering from such contagious disease as makes the practice of Law a hazard
to the health of others. This disqualification shall last for such period as the
Council directs from time to time.
2 8 . These Rules show that subject to the conditions laid down in these Rules, an
enrolled advocate can practise as a full-fledged advocate. His right once granted cannot
be restricted qua his acting in the Court when remaining enrolled as an advocate on the
State Roll. It must, therefore, be held that Section 49(1)(ah) cannot sustain the
impugned Rules.
2 9 . Shri Rao next contended that Section 34(1) of the Act which deals with the
rulemaking power of the High Court enabling it to lay down conditions subject to which
an advocate shall be permitted to practise in the High Court is in pari materia with
Section 49(1)(ah). It clearly shows that the High Court can by rules restrict and impose
conditions on practising advocates before it or before any subordinate court. Similarly,
the Bar Council of India can also in exercise of similar statutory rule-making power
under Section 49(1) of the Act, do so. We fail to appreciate how this analogy can be of
any avail to Shri Rao for the Respondent-Bar Council of India. Once an advocate is
already enrolled on the State Roll, conditions subject to which he can practise before
the High Court or any court subordinate to it can be laid down by the High Court by its
rule-making power under Section 34(1). This necessarily is a situation which is post
enrolment. Similar situation would fall for consideration if the Bar Council of India
seeks to exercise its power under pari materia rule making power under Section 49(1)
(ah) but as the impugned Rules travel backwards and seek to enter upon and monitor
the pre-enrolment situation, the said exercise obviously remains in a forbidden field for
the Bar Council of India. It has also to be appreciated that the powers of the
constitutional courts like the High Courts which are courts of record stand on an entirely
different footing as compared to powers of a statutory authority like the Bar Council of
India which has to justify exercise of its powers within the four corners of the statute
which has created it. It is also not the submission of any learned Counsel before us that
any of the High Courts has framed any rule requiring the State Bar Councils not to enrol
any advocate on its roll if he has not undertaken any pre-enrolment training by
resorting to its rulemaking power under Section 34(1). It is only the Bar Council of
India which has tried to do so by enacting the impugned Rules. Consequently, any
assistance sought to be received by Shri Rao for the Bar Council of India from Section
34(1) on the analogy of the High Court's rule-making power also cannot be of any avail

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to him. These were the only contentions canvassed by learned Senior Counsel, Shri Rao
for the Respondent-Bar Council of India for sustaining the impugned Rules and as we
have found that none of these contentions can be sustained, the inevitable result in that
the impugned Rules fail and must be held to be stillborn being beyond the rulemaking
power of the Bar Council of India. Point I, therefore, has to be answered in the
affirmative in favour of the writ petitions and the Appellant in appeal arising out o
SLP(C) No. 13755 of 1996 and against the Respondent-Bar Council of India in the writ
petitions and which is also the Appellant in appeal arising out of SLP(C) No. 12989 of
1998.
Points 2 and 3.
30. In view of the findings on Point 1, it is not necessary to consider these two points
and, therefore, are not answered.
31. Before parting with these matters, it is necessary to note that in the light of the
experience of various courts in which advocates are practising since the time the
Advocates Act has come into force, the Law Commission of India and other expert
bodies that were entrusted with the task of suggesting improvements in the standards
of legal education and legal practitioners felt it necessary to provide for compulsory
training to young advocates entering the portals of the courtrooms. Training under
Senior Advocates with a view to equip them with Court craft and to make them future
efficient officers of the Court became a felt need and there cannot be any dispute on
this aspect. In fact, the question of making some suggestions regarding admission to
law colleges, syllabus, training, period of practice at different levels of courts, etc. was
taken up as Item 16 in the last Conference of the Chief Justices held in December 1993.
The Conference resolved that Hon'ble the Chief Justice of India be requested to
constitute a Committee consisting of Hon'ble Mr. Justice A.M. Ahmadi as its Chiarman,
and two other members to be nominated by Hon'ble the Chief Justice of India to
suggest appropriate steps to be taken in the matter so that the Law graduates may
acquire sufficient experience before they become entitled to practice in the courts. The
said High-Powered Committee, after inviting the views of the Chief Justices and State
Bar Councils as well as the Bar Council of India made valuable suggestions. The
relevant suggestions in connection with legal education are Suggestions 1, 12, 13, 15,
16 which are required to be noted. They read as under:
1 . In laying down the standards of legal education, the Bar Council's 'Legal
Education Committee' constituted under Rule 4 of Chapter III of the Bar Council
of India Rules, 1965 must reflect the participation of representatives of (1) the
judiciary, (2) the Bar Council and (3) the UGC. It is proposed that the Rules be
amended and the Legal Education Committee be restructured to involve the
bodies above-mentioned.
1 2 . Rule 21 of the Bar Council Rules directing that every university shall
endeavour to supplement the lecture method with case method, tutorials and
other modern techniques of imparting legal education must be amended in a
mandatory form and it should include problem method, moot courts, mock
trials and other aspects and make them compulsory.
13. (i) Participation in moot courts, mock trials, and debates must be made
compulsory and marks awarded, (ii) practical training in drafting pleadings,
contracts can be developed in the last year of the study, and (iii) students'
visits at various levels to the Courts must be made compulsory so as to provide

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 a greater exposure.
***
15. Entrance into the Bar after 12 months or 18 months of apprenticeship with
entry examination. For obtaining the licence/sanad from the State Bar Councils
it must be prescribed that one should secure at least 50 per cent of 60 per cent
marks at the Bar Council examination.
16. So far as the training under a Senior Lawyer during the period of one year
or 18 months of apprenticeship, the Act or the Rules must stipulate that the
senior must have at least 10 or 15 years' standing at the District Court/High
Court and the student's diary must reflect his attendance for three months in
the grass-root level in a civil court and for three months in a Magistrate' Court
and at least six months in a District Court. The advocate in whose office he
works must also certify that the student is fit to enter the Bar. Unless these
formalities are completed, the student should not be permitted to sit for the Bar
Council examination.
***
32. It is true that these suggestions of the High-Powered Committee clearly highlighted
the crying need for improving the standards of legal education and the requirements for
new entrants to the legal profession of being equipped with adequate professional skill
and expertise. There also cannot be any dispute on this aspect. However, at the saying
goes "a right thing must be done in the right manner." We appreciate the laudable
object with which the Bar Council of India has framed the impugned Rules for providing
training to the young entrants to the profession by laying down details as to how they
should get appropriate training during their formative years at the Bar. Unfortunately for
the Bar Council of India, that right thing has not been done in the right manner. We
equally share the anxiety of the Bar Council of India for evolving suitable methods for
improving the standards of legal education and legal profession. The aforesaid
recommendations made by the High-Powered Committee could have been put into
practice by following appropriate methods and adopting appropriate modalities by the
Bar Council of India. Unfortunately, the attempt made by the Bar Council of India by
enacting the impugned Rules has resulted in firing at the wrong end though backed up
by a very laudable purpose. We may in this connection usefully refer to what the High-
Powered Committee itself observed at p.30 of the Report in connection with "entrance
into the Bar after 12 months or 18 months of apprenticeship with entry examination":
Section 28(2)(b) of the Advocates Act, 1961 as it stood in 1961, empowered
the State Bar Councils to make rules for practical training in law courts and for
a Bar Council examination. In exercise thereof Rules were framed by Bar
Councils in the States prescribing the training and Bar Council examination.
Unfortunately the same was omitted later on in the Act by amendment and this
has been the second major factor responsible for the deterioration of standards
in the legal profession.
Now that the Bar Council of India is wanting the reintroduction of Section 28(2)
(b) by Parliament for training the Law graduates for a period and for conducting
the Bar Council examination, the Central Government must soon re-enact the
provision. But the new Section must say that the method of training and the
examination must be such as may be prescribed by the Chief Justice of India
after considering the views of the Bar Council of India. As this matter pertains

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 to entry into the legal profession for practice in Courts, the final authority in
this behalf must be with the Chief Justice of India but after obtaining the views
of the Bar Council of India.
So far as the percentage of marks to be obtained for purposes of receiving a
licence/from the State Bar Councils, it must be prescribed that one should
secure at least 50 per cent or 60 per cent marks at the Bar Council examination.
So far the training under a Senior Lawyer during the period of one year or 18
months of apprenticeship, the Act or Rules must stipulate that the senior must
have at least 10 or 15 years' standing at a District Court/High Court and that
the students' diary must reflect his attendance for three months in the grass-
root level in a civil court and for three months in a Magistrate's Court and at
least six months in a District Court/High Court. The advocate in whose office he
works must also certify that the student is fit to enter the Bar. Unless these
formalities are completed, the student should not be permitted to sit for the Bar
Council examination above-mentioned.
33. These observations of the High-Powered Committee clearly indicate that it was the
stand of the representative of the Bar Council of India before them that Section 28(2)
(b) which was earlier on the statute-book and was deleted by Parliament, was required
to be reintroduced. In other words, it was felt by the Bar Council of India itself before
the High-Powered Committee that for providing pre-enrolment training to prospective
advocates, relevant amendments to the Act were required to be effected. It is easy to
visualise that appropriate amendments in Sections 7 and 24(1) would have clothed the
Bar Council of India with appropriate power of prescribing such pre-enrolment training
for prospective entrants at the bar. That would have provided an appropriate statutory
peg on which the appropriate rule could have been framed and hanged. It is also
necessary to note in this connection that merely leaving the question of providing pre-
enrolment training and examination to only the State Bar Councils may create
difficulties in the working of the all-India statute. It goes without saying that as an
enrolled advocate is entitled to practise in any court in India, common standard of
professional expertise and efficient uniform legal training would be a must for all
advocates enrolled under the Act. In these circumstances, appropriate statutory power
has to be entrusted to the Bar Council of India so that it can monitor the enrolment
exercise undertaken by the State Bar Council concerned in a uniform manner. It is
possible to visualise that if power to prescribe pre-enrolment training and examination
is conferred only on the State Bar Councils, then it may happen that one State Bar
Council may impose such pre-enrolment training while another Bar Council may not and
then it would be easy for the prospective professional who has got the requisite Law
Degree to get enrolment as an advocate from the State Bar Council which has not
imposed such pre-enrolment training and having got the enrolment, he may start
practice in any other Court in India being legally entitled to practice as per the Act. To
avoid such an incongruous situation which may result in legal evasion of the laudable
concept of pre-enrolment training, it is absolutely necessary to entrust the Bar Council
of India with appropriate statutory power to enable it to prescribe and provide for all-
India basis pre-enrolment training of advocates as well as the requisite apprenticeship
to make them efficient and well-informed officers of the Court so as to achieve better
administration of justice. We, therefore, strongly recommend appropriate amendments
to be made in the Act in this connection.
3 4 . We may also mention that till Parliament steps in to make suitable statutory
amendments in the Act for providing pre-enrolment training to prospective advocates

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seeking enrolment under the Act, the Bar Council of India by way of an interim measure
can also consider the feasibility of making suitable rules providing for in-practice
training to be made available to enrolled advocates. Such an exercise may then not fall
foul on the touchstone of Section 49(1)(ah). The impugned Rules can be suitably re-
enacted by deleting the condition of pre-enrolment training to advocates and instead of
treating them to be a hybrid class of trainee advocates with limited right of audience in
courts, may provide in-practice training to already enrolled advocates at least for the
first year of their practice as professionals. Such Rules can also provide for appropriate
stipend to be paid to them by their guides. If during that period, such enrolled junior
advocates are shown to have no independent source of income. Then in the light of
Section 17(2) of the Act, such newly-enrolled advocates who are required to undergo in
practice training for the first one year of their entry in the profession can legitimately
fall in the category of "other advocates" apart from Senior Advocates as contemplated
by that provision.
35. We may also mention that all learned Counsel for the Petitioners and the Appellant-
Bar Council of Maharashtra readily agreed to framing of such a rule by the Bar Council
of India. This would remove the infirmity in the impugned Rules insofar as they tried to
create an entirely new and truncated class of trainee advocates who can only ask for
adjournment and may mention the matters in the courts. It would make them full-
fledged advocates entitled to practise Law with full vigour in the very first year of their
entry in the profession if they are entrusted with the task of arguing matters either by
their seniors or by their guides or by their clients who may impose confidence in them.
This would also avoid unnecessary-complications of deemed seniority and subsequent
retrospective grant of seniority on successful completion of training. This will also
guarantee them proper training in the chamber of Senior Advocates as their guides.
Successful completion of training by advocates who are new entrants to the profession
of Law and the corresponding obligation of their guides would make them liable to
disciplinary action by the State Bar Councils on the ground of misconduct if they do not
discharge their obligations either as stipendiary or non-stipendiary Junior Advocates on
the open hand and their guides on the other. As they would be full-fledged advocates,
the disciplinary jurisdiction of the State Bar Council can also get effectively attracted in
connection with their alleged misconduct if any. This type of in-practice training would
remove all the unnecessary hardship and can be well sustained under the statutory
scheme of the Act and the rulemaking power of the Bar Council of India. We
recommend the Bar Council of India to look into this aspect for the benefit of the legal
profession as a whole so that the void that will be created by our striking down of the
impugned Rules and till future statutory amendment, if any, is carried out by Parliament
as recommended by us in this judgment, can be effectively filled in by exercise of the
rulemaking power by the Bar Council of India, as aforesaid.
3 6 . Before parting with this aspect of the matter, we may also mention that in the
present proceedings at an earlier stage, a Bench of this Court which was then seized of
this matter, after listening to the arguments of the parties for some time had observed
that the Legal Education Committee and the Bar Council of India should once again
consider the recommendations of the Hon'ble Three Judges' Committee, the Law
Ministers' Conference and the recommendations made in the Fourteenth Law
Commission Report at pp. 548 to 550. The Court also gave appropriate suggestions. The
said suggestions have been brought on the record of this case by way of a copy of a
letter addressed by Advocate, Shri Sanjeev Sachdeva dated 24.9.1977 to the Chiarman,
Bar Council of India. The said suggestions read as under:
a. Only graduates should be allowed to take a degree course in Law.

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 b. The university course in Law should extend for a period of two years and
should be confined to the teaching of theory and principles of Law. Procedural,
taxation and other laws of a practical character should not be included in the
university course.
c. Entry to the law colleges should be restricted by a system of strict tests so
that only deserving candidates are admitted. This restriction of admission is
necessary so that proper standards of teaching may be maintained.
d. A person who after obtaining his degree wishes to enter the profession
should pursue a professional course conducted by the Bar Council in procedural
and practical subjects.
e. The Bar Councils should arrange lectures for the benefit of apprentices
undergoing this professional course.
f. Attendance by the apprentice of a certain minimum number of lectures should
be made compulsory.
g. Those who wish to enter the legal profession should be required to work in
the chambers of an experienced lawyer and maintain diaries showing the work
done by them.
h. The apprentice course should be of one year's duration,
i. The apprentices should be subjected to very stiff practical test.
37. These suggestions were communicated to the Bar Council of India by its Advocate,
Shri Sanjeev Sachdeva in the said letter. It is profitable to extract what was sought to
be conveyed to the Bar Council of India as recommendations from this Court:
It also fell from their Lordships that the training should be part of the
curriculum of the university and should not extend the period of study beyond
the existing three years or five years as the case may be. It also fell from their
Lordships that the training could be under the supervision of the respective
High Courts of the State and the State Bar Councils.
It also fell from their Lordships that the training need not be restricted to
merely attending to the chamber but may also include attending to the court
under the supervision of the concerned Court staff.
38. It is also to be considered whether post-enrolment training for one year or less is at
all required for those entrants to the profession who have already worked as solicitor's
article trainees for a number of years before they apply for being enrolled as advocates.
The nature of the training which they have already undertaken while working in the
firms of solicitors may pose the question whether any duplication of training or any
additional training is required for them for entering the legal profession as advocates.
Another aspect which requires consideration by the Bar Council of India is as to whether
the corporate lawyers, meaning those who have already acquired sufficient legal
training while working in the corporate officers as law officers, should be subjected to
such post-enrolment training either wholly or even partially. The Bar Council of India
may do well to consider all these relevant aspect before taking any decision on this
vexed question.
39. We hope and trust that at least now the Bar Council of India may do well to look

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into these suggestions as well as the observations made by us in the present judgment
for salvaging the situation for the entire legal profession in India and for putting young
entrants at the Bar on the right track so that after appropriate in-practice training which
they get from Senior Advocates and their guides they can turn out to be efficient
advocates for serving the suffering humanity having legal problem to be redressed
through them and for helping the cause of justice more effectively.
[40. Before concluding these proceedings, we must mention that it would be necessary
to direct that the present judgment will operate only prospectively to avoid unnecessary
confusion and complications. It is, therefore, made clear that because of the quashing
of the impugned Rules, only applicants who apply for the first time for enrolment after
the date of the present judgment, will not have to undergo pre-enrolment training.
However, those applicants who have already applied for such enrolment during the time
the impugned Rules were in operation and have completed their pre-enrolment training
or are in the process of completion of their training and have still not been enrolled will
not get the benefit of the present judgment.]*
41. A copy of this judgment is directed to be sent to the Chairman, Law Commission of
India. Secretary, Department of Law and Justice, Government of India for considering
what appropriate steps can be taken in this connection.
42. In the result, these writ petitions are allowed. The impugned Rules are struck down.
Appeal arising out of the SLP filed by the Bar Council of Maharashtra and Goa is
allowed. The impugned judgment of the High Court is set aside. The writ petition filed
by the Bar Council of Maharashtra and Goa is accordingly allowed. The appeal filed by
the Bar Council of India arising out of SLP(C) No. 12989 of 1998 is dismissed on the
ground that the question regarding retrospective effect of the impugned Rules will not
survive as the Rules themselves are struck down. The final decision of the High Court
following the writ petition of the Respondent is sustained on the aforesaid ground.
There will be no order as to costs in all these cases.
Clarification dated 15.3.199
After this judgment was pronounced on 12.3.1999 and before it could be signed by both
of us, at the request of learned Counsel for the parties, this matter was fixed today for
further directions in connection with the retrospective operation of this judgment as
mentioned in the last paragraph of p.79 (para 40 above). The said paragraph put in
bracket after hearing the parties, will stand substituted as under:
40. Before concluding these proceedings, we must mention that it would be
necessary to direct that the present judgment will operate only prospectively to
avoid unnecessary confusion and complications. It is clarified that this
judgment will have no retrospective effect in the sense that it will not apply to
those applicants for enrolment who have earlier applied for enrolment and have
successfully completed their pre-enrolment training as per the impugned Rules.
However, all those who apply for enrolment after this judgment will not have to
undergo pre-enrolment training. This will be irrespective of the fact whether
they had earlier applied for enrolment and have not completed their pre-
enrolment training under the impugned Rules till the date of this judgment or
whether they had not earlier applied for enrolment despite getting their Law
Degrees prior to the date of this judgment.
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* This paragraph has been substituted by clarification dated 15.3.99- Editor.
© Manupatra Information Solutions Pvt. Ltd.

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