Case Law Details
Pursuing law and practicing law are two different things : Bar Council not bound to grant licence to practice law: SC
The case of the appellant in brief is that after completion of professional course i.e. Licentiate of the Court of Examiners in Homoeopathy medicines (LCEH), she took admission to LL.B. course conducted by University of Mumbai. It is submitted by the appellant that LCEH is considered as equivalent to graduation degree by the Central Council of Homoeopathy and such decision is even approved by the Government of India for equating the pay scales.
The University of Mumbai admitted the appellant to law course after satisfying itself as regards the equivalence of the professional qualification possessed by her. After completion of her LL.B. degree course, the appellant being desirous of practicing law surrendered her certificate of practicing homoeopathy, which was duly accepted by Maharashtra Council of Homoeopathy on 25.9.2001.
In October, 2001, the appellant applied to Bar Council of Maharashtra and Goa for getting herself enrolled as Advocate and on knowing that her case has been referred to Bar Council of India for clarification as regards her eligibility to get enrolled with reference to her graduation qualification, the appellant made representation to the Bar Council of India. On 23.1.2002, the Bar Council of Maharashtra and Goa informed appellant that she cannot be considered for enrolment as an Advocate as her qualification LCEH is not recongnized by Bar Council of India.
Upon an application being moved by the appellant, Bar Council of India by letter dated 8.8.2002 reiterated that the professional course LCEH is not considered equivalent to degree course. Aggrieved by this, the appellant moved the High Court by way of writ petition praying for quashing of the communications issued by the respondent informing that she cannot seek enrolment as an Advocate since qualification of LCEH in Homoeopathy is not recognized as equivalent to graduation. It has been contended on behalf of the appellant that the Bar Council of Maharashtra or Bar Council of India have no jurisdiction or authorities to decide the question of equivalence of educational qualifications, and therefore, their orders are not valid. Bombay University having considered this as a degree equivalent to BHMS admitted the appellant for the three years LL.B. course and now she cannot be denied the enrolment on the ground of non-recognition of the degree of LCEH. It has also been pleaded that the appellant was not given an opportunity to put forward her case and hence the principles of natural justice were violated and consequently the whole action is of violation of Article 14 of the Constitution.
The Bar Council of India Rules provide that for the purpose of joining the course in law for a degree, candidate must be a graduate of any University or must possess such academic qualifications which are considered equivalent to a graduate degree of a University recognized by the Bar Council of India. As noticed above, Section 7 and Section 49 specifically empower the Bar Council of India to make rules prescribing a minimum qualification required for admission for the course of degree in law from any recognized University.
In our view, the High Court has rightly held that Bar Council has the independent power to recognize any equivalent qualification to a graduate degree for the purpose of admission in the course of graduate degree in law.
. It was submitted by the counsel for the respondent that to ascertain whether the qualification of LCEH is equivalent to a graduate degree, the University was bound to consult Bar Council of India and not the Homoeopathy Council.
Learned counsel appearing for the parties drew our attention to a decision of this Court in the case of Bar Council of India and another vs. Aparna Basu Mallick and ors., (1994) 2 SCC 102. The factual background in which that decision was rendered was that the petitioner in that case after obtaining postgraduate degree undertook studies in LL.B. course of Calcutta University as a non-collegiate woman candidate under Regulation 35 of the Calcutta University. On successful completion of the course, she was conferred with the law degree in terms of Regulation 35 of the Calcutta University. Thereafter, she applied to the Bar Council of India for enrolment as an advocate. However, she was informed by the Bar Council of India that she was not entitled to be enrolled as she did not fulfill the condition contained in the Bar Council of India Rules framed under the provisions of the Advocates Act. She challenged the rejection of her application of enrolment before the High Court of Calcutta by way of writ petition on the ground that the same is illegal and invalid and the Rule 1(1)(c) of the Bar Council of India Rules ultra vires Articles 14 and 19(1)(g) of the Constitution of India. Learned Single Judge overruled all the contentions and discharged the rule nisi. Against the said decision, an appeal was preferred before the Division Bench of the Calcutta High Court. The Division Bench held that Rule 1(1)(c) did not lay down any standard of legal education but provided that the law degree obtained from any University in India shall not be recognized for the purpose of Section 24 of the Act unless the conditions specified therein were satisfied. The Division Bench allowed the appeal and against that order, the Bar Council of India moved this Court. This Court allowed the appeal and reversed the decision of the Division Bench of the Calcutta High Court and restored the decision of the Single Judge dismissing the writ petition. This Court observed as under:
“14. Now under Section 7, one of the functions of the Bar Council of India is to recognise Universities whose degree in law shall be a qualification for enrolment as an advocate and for that purpose to visit and inspect the Universities. This power of recognition of Universities is conferred where the degree of law of that University entitles the degreeholder for enrolment as an advocate. Under Section 24(1)(c)(iii) which is relevant for this purpose, a person shall be qualified to be admitted as an advocate on a State roll if he fulfils the conditions of having undergone a three year course of study in law from any University in India which is recognised by the Bar Council of India. Sub-section (3) of Section 24 is an exception clause to sub-section (1) as it begins with a non-obstante clause which entitles a person to be enrolled as an advocate under special rule made in that behalf. No such rule was relied upon as having been made under sub-section (3) of Section 24. Section 49(1)(d) empowers the Bar Council of India to make rules which may prescribe the standards of legal education to be observed by Universities in India and the inspection of Universities for that purpose. If the acquisition of a degree in law is essential for being qualified to be admitted as an advocate on a State roll, it is obvious that the Bar Council of India must have the authority to prescribe the standards of legal education to be observed by Universities in the country. On a conjoint reading of these provisions of the Act with Rule 1(1)(c) in Part IV of the Rules which prescribe the standards for legal education and recognition of degrees in law as well as admission as advocates, it is difficult to understand how one can say that the said Rule is inconsistent with any of the provisions of the Act. What Rule 1(1)(c) requires is that the course of study in law must be completed by regular attendance at the requisite number of lectures, tutorials and moot courts in a college recognised by a University. As pointed out earlier, this Court in Baldev Raj Sharma case [1989 Supp (2) SCC 91] pointed out that there was a substantial difference between a course of studies pursued as a regular student and the course of studies pursued as a private candidate. The policy underlying the relevant provisions of the Rules is to lay emphasis on regular attendance of the law classes. It is, therefore, clear that a candidate desiring enrolment as an advocate must fulfil the conditions set out under the relevant clause of Section 24 read with Rule 1(1)(c) of the Rules. In the present case since both the candidates admittedly did not pursue any regular course of study at any college recognised by the University by attending the law classes, lectures, tutorials and moot courts, they cannot be said to have complied with the requirements for enrolment as an advocate. In that view of the matter we think that the view taken by the Calcutta High Court in Aparna Basu Mallick v. Bar Council of India [AIR 1983 Cal 461] is erroneous.
16. It was lastly submitted that so far as the Calcutta student was concerned, her case was governed by Regulation 35 which specifically permitted a woman candidate to appear as non-collegiate student. This Regulation underwent a change on the addition of the proviso by the Resolution of December 7, 1979 which required the University to inform the woman candidate in advance that she will not be eligible for enrolment as an advocate and the degree to be awarded shall bear an inscription to the effect that it was obtained as a non-collegiate student. Regulation 35 could not hold the field unless it was consistent with the provisions of the Act and the Rules. That is why the proviso was required to be added to the Regulation. But if the University had omitted to insert the proviso that would not have entitled a woman candidate for enrolment as an advocate on securing a degree as a non-collegiate. Unless the degree of law was secured consistently with the requirements of the provisions of the Act and the Rules, it would not serve as a qualification for enrolment. The proviso was added to Regulation 35 by way of extra caution. After the incorporation of Rule 1(1)(c) in its present form, Regulation 35 could not entitle a woman candidate to be enrolled as an advocate if she secured the degree as a non-collegiate.”
We, therefore, after giving our anxious consideration in the matter, are of the definite opinion that the Bar Council of India is not bound to grant a license as claimed by the appellant. Pursuing law and practicing law are two different things. One can pursue law but for the purpose of obtaining license to practice, he or she must fulfill all the requirements and conditions prescribed by the Bar Council of India. We do not find any reason to differ with the view taken by the High Court.
DECISION IS ABSOLUTILY FAVOURING ADVOCATES COMMUNITY.BUT WHAT ABOUT TAX ADVOCATES.WHOES BASIC RIGHT TO PRACTICE ANY LAW INCLUDING INCOME TAX,SALES TAX,GST ARE DOMINATED ONLY BY CA’S BCI MUST TAKE STEPS TO SAFEGUARD THIER MEMBERS BASIC RIGHTS. AS ICAI HAS DONE IN HISTORY.