TaxTMI 
TaxTMI 
1995 (1) TMI 382
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....9th May, 1961. The dictionary of the Act is to be found in Section 2, clause (a) whereof defines an Advocate as a person entered in any roll under the provisions of the Act as such and the term ' roll' according to clause (k) means a roll of advocates prepared and maintained under the Act. Section 3 provides that there shall be a Bar Council for each of the States to be known as the Bar Council of that State. Section 4 next provides for a Bar Council for the territories to which the Act extends to known as the Bar Council of India. The functions of the State Bar Council and the Bar Council of India have been set out in Sections 6 & 7, respectively. The functions of the State Bar Council include admission of persons as advocates on its roll, safeguarding the rights, privileges and interests of advocates on its roll and to do all things necessary for discharging the above functions. The functions of the Bar Council of India include the laying down of standards of professional conduct and etiquette for advocates and for safeguarding their rights, privileges and interests. Chapter III which deals with 'Admission and Enrollment of Advocates' comprises of Sections 16 to 28. Section 16....
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....subject to which a person may be admitted as an advocate on its roll. Chapter IV deals with the 'Right to Practise'. Section 29 says that subject to the provisions of the Act and any rule made thereunder there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates. According to Section 30 every advocates whose name is entered in the State roll shall be entitled as of right practise throughout the territories to which the Act extends in all courts including the Supreme Court of India, before any Tribunal or person legally authorised to take evidence and before any authority or person before whom such advocate is, by or under any law for the time being in force, entitled to practise Section 33 further provides that 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 the Act. Chapter V deals with 'Conduct of Advocates'. Under Section 35 where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct it sha....
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....at the monopoly of practise granted under the Act is not misused or abused by a person who is enrolled as an advocate. The Bar Councils have been created at the State level as well as the Central level not only to protect the rights, interests and privileges of its members but also to protect the litigating public by ensuring that high and noble traditions are maintained so that the purity and dignity of the profession arc not jeopardized. It is generally believed that members of the legal profession have certain social obligations;, e.g,to render 'probono publico' service to the poor and the under privileged. Since the duty of a lawyer is to assist the court in the ad-ministration of justice the practise of law has a public utility flavour and, therefore, he must strictly and scrupulously abide by the Code of Conduct behaving the noble profession and must not indulge in any activity which may tend to lower the image of the profession in society. That is Why the functions of the Bar Council include the laying down of standards of professional conduct and etiquette which advocates must follow to maintain the dignity and purity of the profession. 4. La the above background it was ....
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.... the Act and the Constitution. According to it the right to practice as an advocate not being a fundamental right but only a privilege conferred by the Act can always be withdrawn and in any case reasonable restrictions can be imposed even if it were a fundamental right under Article 19(1)(g) of the Constitution. The restriction imposed by the newly added rule is to serve a public purpose and can never be termed as unreasonable, violative of Article 14 of the Constitution. Since the upper age limit has been fixed to save the legal profession from decay and deterioration it is, contends the Bar Council, difficult to comprehend how it can be said to be inconsistent with Article 21 and for that matter Article 14 of the Constitution. The prescription of the higher age limit does not violate Section 24 of the Act and since Section 49 permits, classification and categorization which even Article 14 permits, the newly added rule is clearly intravires the Act and the Constitution. That, in brief, is the defense set up by the Bar Council of India in support of the rule impugned before us. 5.It is clear from the above averments found in the counter filed on behalf of the Bar Council of In....
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....equired to prepare and maintain a roll for that purpose. While disciplinary jurisdiction is conferred on the State Bar Councils to punish its members for misconduct, it is at the same time charged with the duty to safeguard their rights, privileges, and interests. They must perform. all the functions conferred on them by or under the Act and do everything that is necessary to discourage the functions set out in Section 6. So far as the Bar Council of India is concerned, its functions are of a more general nature, e.g., to lay down standards of professional conduct and etiquette for advocates, to safeguard their rights, privileges and interests to supervise and. control the working of the State Bar Council, to promote legal education, to recognise universities, to organise legal aid to the poor and to perform all other functions conferred by or under the Act and do everything that may be necessary to discharge the functions enumerated in Section 7. Besides the above it too is required to exercise discipline and control over the members of the profession. Thus the functions are divided between the State Bar Councils and the Bar Council of India, although for obvious reasons overlaps ....
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....ttee of the Bar Council for hearing cases and any other matter which may be prescribed. There, in brief, are the rule making powers conferred on various agencies under the Act. 8. The newly added rule seeks to bar the entry of persons who have completed the age of 45 yews on the date of application for enrolment as an advocate from being enrolled as such by the concerned State Bar Council. While Section 24 of the Act prescribes the minimum age for enrolment as twenty-one years complete, there is no provision in the Act which can be said to prescribe the maximum age for entry in to the profession. Since the Act is silent on this point the Bar Council of India was required to resort to its rule making power. The rules made by the Bar Council of India under Section 49(1)of the Act are in seven parts, each part having its own chapters. Part VI is entitled 'Rules Governing Advocates' and the said part has three chapters. Chapter I sets out the restrictions on senior advocates and is relatable to Section 16(3) and 49(1) (g) of the Act, Chapter II lays down the standards of professional conduct and etiquette and is relatable to Section 49(i) (c) read with the proviso thereto and Chapte....
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....ave completed 45 years of age be said to constitute a class or category to entitle the Bar Council of India to debar them from being enrolled as advocates? Rule 49 (1) empowers the Bar Council of India to make rules for discharging its functions under the Acts and in par-ticular those enumerated in clauses (a) to (i) thereof None of the functions under Section 7 specifically provides for laying down such a condition debarring persons of a certain age group from enrolment as advocates. The clause relied upon is couched in positive terms, namely, it says the rules may prescribe the class or category of persons who may be admitted to the legal profession. Therefore, under this rule the class or category of persons 'entitled to be enrolled' as advocates may be prescribed. The rule can, therefore, specify the class or category of persons 'entitled' to be enrolled as an advocates, but the rule gives no indication that it can debar persons belonging to a certain age group from being enrolled as advocates. Where a provision is couched in positive language and is in the nature of an enabling provision, there is no canon of construction which says that by necessary implication the rule makin....
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.... by the State Bar Council (Section 24 (1) (e) ). Every person whose name is entered in the list of advocates has a right to practise in all courts including the Supreme Court, before any tribunal or other authority. It is, therefore, within the exclusive domain of the State Bar Councils to admit persons as advocates on their rolls or to remove their names from the rolls. There is no provision in Chapter III dealing with admission and enrolment of advocates which restricts the entry of those who have completed 45 years as advocates. Nor has the Bar Council made any such rule under its rule making power. 12.There is no specific provision in Section 7 of the Act which enumerates the functions of the Bar Council of India empowering it to fix the maximum age beyond which entry in to the profession would be barred. 'Mat is why reliance is placed on the rule making power of the Bar Council of India enshrined in Section 49. That Section empowers the making of rule by the Bar Council of India 'for discharging its functions' under the Act, and, in particular, such rules may prescribe the class or category of persons entitled to be enrolled as advocates. The functions of the Bar Council of....
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....sonable or arbitrary and unreasonable? The rationale for the rule, as stated earlier, is to maintain the dignity and purity of the profession by keeping out those who retire from various government, quasi-govern-ment and other institutions since they on being enrolled as advocates use their past contacts to canvass for cases and also pol lute the minds of young fresh entrants to the profession. Thus the object of the rule is clearly to shut the doors of profession for those who seek entry in to the profesSion after completing the age of 45 years. In the first place, there is no reliable statistical or other material placed on record in support of the inference that ex-government or quasi-government servants or the -like indulge in undesirable activity of the type mentioned after entering the profession. Secondly, the rule does not debar only such persons from entry in to the profession but those who have completed 45 years of age on the date of seeking enrolment. Thirdly those who were enrolled as advocates while they were young and had later taken up some job in any government or quasi-government or similar institution and had kept the sanad in abeyance are not debarred from recei....