TaxTMI 
TaxTMI 
2024 (8) TMI 2
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............................................................................. 13 ii. Advocates Act: A Complete Code ................................................................. 17 iii. Delegated legislation ..................................................................................... 20 iv. Power to levy fees .......................................................................................... 22 v. Regulatory fees .............................................................................................. 25 E. Fees charged by the SBCs................................................................................ 28 F. SBCs cannot charge enrolment fees beyond the mandate of Section 24(1)(f) ............................................................................................................................. 31 i. Legislative Scheme ........................................................................................ 31 ii. Bar Councils cannot levy fees beyond the express stipulation of law ..... 39 G. All fees charged at the time of enrolment are 'enrolment fees' .................... 46 i. Charges other than the enrolment fe....
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....tion 17 mandates the SBCs to prepare and maintain a roll of advocates. An application for admission as an advocate on a State roll is made to the SBCs.5 The SBCs are required to issue a certificate of enrolment to every person whose name is enrolled in the roll of advocates.6 Section 24 prescribes the qualifications and conditions for a person to be admitted as an advocate.7 5. To qualify to be admitted as an advocate on a State roll, a person must: (a) be a citizen of India; (b) complete the age of twenty-one years; (c) obtain a degree in law; (d) fulfil such other conditions as may be specified in the rules made by the SBCs under Chapter III; and (e) pay an enrolment fee of Rupees six hundred payable to the SBC and Rupees one hundred to the BCI along with any stamp duty, if chargeable. In the case of a person belonging to the Scheduled Castes or Scheduled Tribes, the enrolment fee of Rupees one hundred is payable to the SBC and Rupees twenty-five to the BCI. 6. The SBCs charge enrolment fees stipulated under Section 24(1)(f) of the Advocates Act to admit law graduates on their State roll. At the time of enrolment, the SBCs also charge various "fee....
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....ond the statutory prescription. It only means that other provisions of the Act must be considered while deciding the 'eligibility' of law graduates to be admitted as advocates on the state rolls; d. Section 6(3) of the Advocates Act prescribes how the SBCs may constitute 'funds' to fulfil their functions under Section 6(2). It does not allow imposing additional charges under different heads along with the enrolment fees or charging exorbitant fees as a mandatory condition for persons to get enrolled; e. The exorbitant enrolment fees prevent law graduates belonging to economically weaker sections of society from getting admitted to the rolls of the SBCs. Such an indirect bar on law graduates enrolling as advocates offends Article 19(1)(g) of the Constitution. It also makes the process of enrolment coercive, improper, unjust and unfair, violating Article 14 of the Constitution; and f. The Advocates' Welfare Fund Act 2001 enacted by Parliament allows for the collection of funds through various sources for the welfare of advocates. This amount does not need to be collected by levying exorbitant enrolment fees. 10. Mr Manan Kumar Mishra, senior counsel made....
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....). The term 'any matter' used in Section 49(h) also includes matters relating to the enrolment of an advocate. In exercise of this power and to ensure uniformity, the BCI has placed on record before this Court, the draft Uniform Rules (For Enrolment and Other Fees To Be Charged By The State Bar Councils) 202311 laying down a uniform fee to be charged by all SBCs at the time of enrollment. 11. In view of the above submissions, the BCI has submitted that this Court exercise its extraordinary powers under Article 142 to implement a uniform enrolment fee structure that adequately caters to the financial requirements of the SBCs until legislative amendments are made to the Advocates Act. Additionally, it has urged this Court to direct the Union Government to revise the enrolment fee prescribed in Section 24(1)(f). 12. The SBCs have filed counter affidavits justifying the imposition of the fees charged by them at the time of enrollment. In essence, they contend that (i) the statutorily prescribed enrolment fee in Section 24(1)(f) fails to account for the current economic situation; (ii) the SBCs are charging fees in addition to the statutorily prescribed enrolment fee in return for....
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....ocates and vakils (who were Indian non-barristers) could act and plead before all High Courts, except for the Calcutta High Court which excluded vakils from the Original Side.15 This distinction between advocates and vakils led to the demand for the creation of an all-India Bar. 15. To give effect to this demand, the colonial legislature enacted the Indian Bar Councils Act 192616 "to provide for the constitution and incorporation of Bar Councils and to confer powers and impose duties on such Bar Councils." Section 3 prescribed the constitution of a Bar Council for every High Court. Section 8 pertained to the admission and enrolment of Advocates. It authorized the High Courts to prepare and maintain a roll of advocates. Section 9 empowered the Bar Councils to make rules regulating the admission of persons to be advocates of the High Court including the charging of fees payable to the Bar Councils in respect of enrolment. Thus, the 1926 Act empowered the Bar Councils to prescribe fees in respect of enrolment. However, the 1926 Act did not substantially fulfil the demands of the Indian legal practitioners for an all-India Bar. In 1951, the Government set up the All- India Bar Commi....
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....stalment basis. In 1958, the Law Commission of India observed that the amount of Rupees five hundred proposed by the All-India Bar Committee was excessive. It instead suggested an enrolment fee of Rupees one hundred twenty-five.18 18. In 1959, the Legal Practitioners Bill 1959 was introduced in Parliament. The Bill was referred to a Joint Committee of Parliament which submitted its recommendations in 1960. The Joint Committee recommended renaming the proposed enactment as the Advocates Act because there would only be one class of legal practitioners in India, that is, advocates. Importantly, the Joint Committee recommended reducing the proposed enrolment fee from Rupees five hundred to Rupees two-hundred and fifty. The aim behind reducing the enrollment fee was "to bring in as many eligible lawyers within its [the legislation's] fold as possible."19 19. The recommendation of the Joint Committee was accepted by Parliament and incorporated under Section 24(1)(f). During the Parliamentary debates preceding the passage of the Advocates Act, many members suggested that the enrolment fee of Rupees two-hundred fifty was exorbitant.20 It was suggested that the enrolment fee should be....
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.... in List I. Concerning the imposition of stamp duty, it was held that stamp duty payable on the certificate of enrolment cannot be regarded as a condition prescribed for enrolment because it pertains to the domain of taxation.30 It was held that the State Legislature was competent to levy stamp duty under Entry 44 of List III of the Seventh Schedule. 23. The Advocates Act was enacted to implement the recommendations of the All-India Bar Committee. According to the Statement of Objects and Reasons, the main features of the enactment are: (i) establishment of an All-India Bar Council and a common roll of advocates, and advocates on the common roll having a right to practice in any part of the country and any Court, including the Supreme Court; (ii) integration of the bar into a single class of legal practitioners known as advocates; (iii) prescription of a uniform qualification for the admission of persons to be advocates; (iv) division of advocates into senior advocates and other advocates based on merit; and (v) creation of autonomous Bar Councils, one for the whole of India and one for each State. 24. The 1926 Act did not prescrib....
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....e delegated or subordinate authorities to carry out the legislative policy.35 It is now a settled legal principle that the legislature cannot abdicate essential legislative functions to the delegated authority.36 The legislature can entrust subsidiary or ancillary legislation to the delegate. Before such delegation, the legislature should enunciate the policy and the principles for the guidance of the delegated authority.37 As a corollary, the delegated authority must carry out its rule-making functions within the framework of the law. The delegated legislation must be consistent with the law under which it is made and cannot go beyond the limits of policy and standards laid down in the law.38 28. Although delegated legislation enjoys the presumption of constitutionality, it does not enjoy the same immunity as the parent legislation. It is now wellestablished39 that delegated legislation can be challenged on the following grounds: (i) lack of legislative competence to make delegated legislation; (ii) violation of fundamental rights guaranteed under the Constitution; (iii) violation of any provision of the Constitution; (iv) failure to conform ....
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....rticle 366(28) "Taxation" has been defined to include the imposition of any tax or impost whether general or local or special and tax shall be construed accordingly. "Impost" means compulsory levy. The well-known and well-settled characteristic of "tax" in its wider sense includes all imposts. Imposts in the context have following characteristics: (i) The power to tax is an incident of sovereignty. (ii) "Law" in the context of Article 265 means an Act of legislature and cannot comprise an executive order or rule without express statutory authority. (iii) The term "tax" under Article 265 read with Article 366(28) includes imposts of every kind viz. tax, duty, cess or fees. (iv) As an incident of sovereignty and in the nature of compulsory exaction, a liability founded on principle of contract cannot be a "tax" in its technical sense as an impost, general, local or special." 32. The Seventh Schedule to the Constitution differentiates between taxing entries and general entries. Subjects pertaining to the levy of taxes must be traced to specific taxing entries enumerated in either List I or List II.43 In addition, Parliament has the residuary powe....
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....Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,47 a Constitution Bench explained the concept of licence fees thus: "47. [...] In the first class of cases, the Government simply grants a permission or privilege to a person to do something, which otherwise that person would not be competent to do and extracts fees either heavy or moderate from that person in return for the privilege that is conferred. A most common illustration of this type of cases is furnished by the licence fees for motor vehicles. Here the costs incurred by the Government in maintaining an office or bureau for the granting of licences may be very small and the amount of imposition that is levied is based really not upon the costs incurred by the Government but upon the benefit that the individual receives. In such cases, according to all the writers on public finance, the tax element is predominant, and if the money paid by the licence-holders goes for the upkeep of roads and other matters of general public utility, the licence fee cannot but be regarded as a tax" In Shirur Mutt (supra), it was held that a fee is money taken by the Government "as the return for the work done ....
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....resently, the SBCs charge different fees from advocates at the time of enrolment. Most SBCs charge an enrolment fee in addition to other miscellaneous fees. For instance, the Bar Council of Maharashtra and Goa is charging library fees, certificate fees, administration fees, identity card fees, training fees, and welfare fund contributions. Resultantly, the enrolment fee and the other fees charged by the SBC amounts to Rupees fifteen thousand for general candidates and Rupees fourteen thousand five hundred for candidates from SC and ST category. 41. The Bar Council of Odisha is charging Rupees forty-two thousand one hundred from advocates at the time of enrolment. In their counter affidavit, the SBC concedes the fact that Section 24(1)(f) only mandates the SBCs to charge Rupees seven hundred fifty in total at the time of enrolment. However, the SBC sought to justify charging the enhanced enrolment fee and other fees from the advocates "having regard to the functions of the Odisha Bar Council" under the Advocates Act. The SBC further claims that in line with its functions under Section 6, it has created various welfare funds for the benefit of advocates on its roll and utilizes th....
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....d office maintenance from the enrolment fees. The SBC charges Rupees sixteen thousand six hundred fifty as enrolment fees from general candidates. Out of this, nine thousand five hundred is allowed to be used for office expenses while the balance is deposited into other accounts and used for specified purposes. According to the SBC, the average annual enrolment in Manipur is of a hundred advocates. Therefore, the total enrolment fee collected by the SBC is Rupees nine lakh fifty thousand against the overall annual expense of Rupees nine lakh. 44. The legal profession is a serious occupation and requires advocates to maintain exemplary conduct both inside and outside the court.58 The SBCs and the BCI perform the important function of regulating and maintaining the standards of conduct required from advocates. The Bar Councils conduct activities related to providing advocates knowledge about the substantive and procedural aspects of law. Many SBCs have published books and manuals and assisted members of the legal profession in acquiring the practical skills required for the successful pursuit of a career as an advocate. The Bar Councils conduct welfare schemes for advocates. Durin....
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....ional bodies; (g) Section 8 specifies terms of office of the members of the SBCs; (h) Section 8A talks about constitution of a special committee in the absence of an election; (i) Section 9 deals with disciplinary committees; (j) Section 9A talks about constitution of legal aid committees; (k) Section 10 provides for constitution of committees other than disciplinary committees; (l) Section 10A pertains to transaction of business by Bar Councils and committees; (m) Section 11 allows Bar Councils to appoint staff; (n) Section 12 mandates Bar Councils to maintain books of account for audit; (o) Section 13 provides that vacancies in Bar Councils cannot be a ground to challenge the validity of acts done by a Bar Council; and (p) Section 14 pertains to challenges to elections to Bar Councils. 47. Chapter II establishes Bar Councils and delineates their functions and responsibilities. The provisions of the Chapter II also empower Bar Councils to constitute disciplinary and other committees and appoint qualified staff. The rule-making powers granted to Bar Councils under Section 15 are regulatory ....
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.... Bar Council cannot have effect unless it is approved by the Bar Council of India. But the approval of the Bar Council of India can make the rule made by the State Bar Council valid and effective only if the rule made is within the competence of the State Bar Council, otherwise not. Mere approval by the Bar Council of India to a rule ultra vires the State Bar Council cannot make the rule valid. Nor has it the effect of a rule made by the Bar Council of India. Making a rule by the Bar Council of India and giving approval to a rule made by the State Bar Council are two distinct and different things. One cannot take the place of the other." 51. We can derive the following principles concerning the rule-making power of the SBCs under Section 15: (i) the SBCs can exercise rule-making powers only for the subject matters specified under Chapter II; (ii) although the SBCs have a broad rule-making power, it must be exercised to further the object and purpose of the Advocates Act; (iii) the SBCs cannot use their rule-making power under Section 15 with respect to subject matters on which the BCI has been granted exclusive power to make rules under the Advocates Act; and (iv) approval by th....
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....of the noble and learned profession to which they are to be given entry." Given the above reasoning, it was held that the rule enacted by the SBC barring a medical practitioner from simultaneously practicing law was valid. 55. Section 24 lays down the eligibility qualifications for a person who seeks admission as an advocate on the State roll. Section 24(1)(e) provides that such a person must also fulfil "such other conditions as may be specified in the rules made by the State Bar Council under this Chapter." The use of the expression "other conditions" indicates that the SBCs can prescribe conditions and qualifications in addition to what has already been prescribed statutorily under Section 24(1). Section 24(1) lays down requirements such as citizenship, age, and educational efficiency that make a person eligible to be admitted on a State roll. These minimum qualifications enable a person to effectively perform their responsibilities as legal professionals. In addition, the BCI can also prescribe "such other conditions" in addition to the qualifications already prescribed under Section 24(1). Generally, a condition is a qualification, restriction, or limitation.66 However, the....
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....ilities not contemplated by the provisions of the parent enactment.67 Further, the rules must align with the object and purpose of the Advocates Act, namely, the creation of a common bar and regulation of legal practitioners and their qualifications, enrolment, right to practice, and discipline. 59. A legislation can confer the power to make subordinate legislation upon a delegate. In conferring such powers, the legislation has to specifically law down the policy, principles, and standards that will guide the subordinate authority.68 The legislative policy can be determined from the preamble and the provisions of an enactment.69 The delegate derives its legislative powers from the parent statute. Unlike the legislature, which has sovereign legislative powers derived from the Constitution, the delegated authority is conferred powers by the parent enactment. Therefore, delegated authority must strictly conform to the provisions of the statute under which it is framed.70 A delegate cannot alter or change the legislative policy.71 A delegate cannot override the provisions of the parent enactment either by exceeding the legislative policy or making provisions inconsistent with the en....
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....t. A three-Judge Bench of this Court observed: "10. [...] It is an established principle that the power to make rules under an Act is derived from the enabling provision found in such Act. Therefore, it is fundamental that a delegate on whom such power is conferred has to act within the limits of the authority conferred by the Act and it cannot enlarge the scope of the Act. A delegate cannot override the Act either by exceeding the authority or by making a provision that is inconsistent with the Act. Any rule made in exercise of such delegated power has to be in consonance with the provisions of the Act, and if the rule goes beyond what the Act contemplates, the rule becomes in excess of the power delegated under the Act, and if it does any of the above, the rule becomes ultra vires the Act." 63. In Assam Co. Ltd. (supra), it was observed that enactment empowered the State Government to make such rules as were necessary for carrying out the purposes of the enactment. It was further observed that the object and the scheme of the enactment did not empower the State authorities to recompute agricultural income contrary to the computation made by the Central officers. It wa....
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....s seven hundred fifty and by SC and ST candidates, Rupees one hundred and twenty-five. Section 24(1)(f) reflects the legislative policy of the Advocates Act that subject to the fulfilment of other conditions of Section 24(1), the payment of the stipulated monetary amount will make a person eligible to be admitted as an advocate. 68. Presently, the SBCs charge enrolment fees in the following manner: (i) they charge an enrolment fee according to the legal stipulation under Section 24(1)(f), but charge miscellaneous fees, and (ii) they charge an enrolment fee beyond the legal stipulation in addition to charging miscellaneous fees. Section 24(1)(f) expressly stipulates that the total enrolment fees shall be Rupees seven hundred fifty for advocates belonging to the general category and Rupees one hundred twenty-five for advocates belonging to the SC and ST category. The SBCs cannot charge "enrolment fees" beyond the express legal stipulation under Section 24(1)(f) as it currently stands. Therefore, prescribing enrolment fees beyond Rupees seven hundred for general candidates and Rupees one hundred twenty-five for SC and ST candidates is contrary to Section 24(1)(f). The subject matte....
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....lment fees. The BCI resolution dated 26 June 2013 prompted many SBCs such as the Odisha Bar Council to enhance their enrolment fees. Section 24(1)(f) stipulates the enrolment fee to be charged by the SBCs. In the face of the express stipulation of law, the BCI had no authority to pass a resolution revising the enrolment fees charged by the SBCs. The fact that the enrolment fee stipulated under Section 24(1)(f) has not been revised by the legislature does not clothe the BCI with any authority to direct the SBCs to charge revised enrolment fees. Since the BCI exercises general supervision and control over all the SBCs, it is incumbent upon it to ensure that the SBCs strictly follow the mandate of the Advocates Act. The resolution dated 26 June 2013 is devoid of legal authority and contrary to Section 24(1)(f) of the Advocates Act. G. All fees charged at the time of enrolment are 'enrolment fees' 72. In this batch of matters, we have transferred to this Court similar petitions pending before the Kerala High Court. In T Koshy v. Bar Council of Kerala,80 the SBC was charging special fees for enrolment from candidates who had retired from government service. A Single Judge of the K....
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....ant who is found eligible is entered on the roll of advocates and a certificate of enrolment is issued to the applicant by the SBC. The enrolment fee prescribed under Section 24(1)(f) comprehends the whole enrolment process. 76. On 27 December 2016,84 the BCI passed a resolution fixing the verification fees charged by the SBCs at the time of submission of enrolment forms. The resolution was in the following terms "The State Bar Councils/ Enrolment Committees of the State Bar Councils shall require the Xerox as well as the original certificates of the candidates applying for enrolment. Following certificates shall be required to be submitted alongwith the enrolment forms:- (a) Certificate of concerned Board for Secondary/10th examination. (b) Certificate of concerned Board for Senior Secondary or intermediate examination. (c) Certificate of graduation, if any or/and the LLB degree or the provisional certificates of these Degrees granted by the University as well as the mark-sheets of all the three or five year of LL.B. examinations. The office of State Bar Councils shall charge a sum of Rs. 2500/- for verification of the said certifica....
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.... advocates already admitted on the State rolls. Therefore, this sum cannot be collected from persons at the time of enrolment. It must be collected from advocates after they are admitted on the State roll. ii. Article 14: substantive equality and manifest arbitrariness 81. Article 14 has a substantive content that mirrors the quest for ensuring fair treatment of an individual in every aspect of human endeavour and existence.86 In Joseph Shine v. Union of India,87 one of us (D Y Chandrachud, J) observed that substantive equality is directed at eliminating individual, institutional, and systemic discrimination against disadvantaged groups which effectively undermines their full and equal participation in society at the social, economic, political, and cultural levels. It was further observed: "172. The primary enquiry to be undertaken by the Court towards the realisation of substantive equality is to determine whether the provision contributes to the subordination of a disadvantaged group of individuals. The disadvantage must be addressed not by treating a woman as "weak" but by construing her entitlement to an equal citizenship. The former legitimises patronising atti....
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....y paying on their own or by availing of a student loan. Students are also expected and sometimes mandated to partake in internships, research work, and co-curricular and extra-curricular activities among others.90 Partaking in these activities entails additional expenses. 85. Young law graduates seeking to enter litigation start from a position of disadvantage. In S Seshachalam v. Bar Council of Tamil Nadu,91 Justice R Banumathi summed up the struggle of young advocates in apt words: "26. The profession of Law is a noble calling. The legal fraternity toils day and night to be successful in the profession. Although it is true that slowly working one's way up is the norm in any profession, including Law, but initially young advocates have to remain in the queue for a prolonged period of time and struggle through greater hardships. Despite being extremely talented, a number of young lawyers hardly get proper opportunity or exposure in their profession. New entrants to the profession in the initial stages of the profession suffer with the meagre stipend which young lawyers may receive during their initial years, coupled with the absence of a legislation concerning this,....
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....al provisions (like reservation) enable such disadvantaged classes to overcome the barriers they face in effectively competing with forward classes and thus ensuring substantive equality. The privileges that accrue to forward classes are not limited to having access to quality schooling and access to tutorials and coaching centres to prepare for a competitive examination but also include their social networks and cultural capital (communication skills, accent, books or academic accomplishments) that they inherit from their family. The cultural capital ensures that a child is trained unconsciously by the familial environment to take up higher education or high posts commensurate with their family's standing. This works to the disadvantage of individuals who are first-generation learners and come from communities whose traditional occupations do not result in the transmission of necessary skills required to perform well in open examination. They have to put in surplus effort to compete with their peers from the forward communities. On the other hand, social networks (based on community linkages) become useful when individuals seek guidance and advice on how to prepare for examina....
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....nd fifty. Thus, the candidates from the SC and ST category practically pay as much as the candidates from the general category. This is evidently against the legislative policy of the Advocates Act. 90. Dignity is crucial to substantive equality. The dignity of an individual encompasses the right of the individual to develop their potential to the fullest.96 The right to pursue a profession of one's choice and earn livelihood is integral to the dignity of an individual. Charging exorbitant enrolment fees and miscellaneous fees as a pre-condition for enrolment creates a barrier to entry into the legal profession. The levy of exorbitant fees as a pre-condition to enrolment serves to denigrate the dignity of those who face social and economic barriers in the advancement of their legal careers.97 This effectively perpetuates systemic discrimination against persons from marginalized and economically weaker sections by undermining their equal participation in the legal profession. Therefore, the current enrolment fee structure charged by the SBCs is contrary to the principle of substantive equality. 91. In Ravinder Kumar Dhariwal v. Union of India,98 a three-Judge Bench of this Cou....
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....manifestly arbitrary. Further, the effect of charging exorbitant enrolment fees as a pre-condition for enrolment has created entry barriers, especially for people from marginalized and economically weaker sections, to enter into the legal profession. Thus, the current enrolment fee structure is manifestly arbitrary because it denies substantive equality. iii. Article 19(1)(g): unreasonableness 95. Section 30 of the Advocates Act inheres in every advocate whose name is entered in the State roll the right to practice in all courts throughout the territory of India. Article 19(1)(g) of the Constitution provides that all citizens of India shall have the right to practice any profession or to carry on any occupation, trade, or business. Article 19(6) subjects the right under Article 19(1)(g) to reasonable restrictions. Further, the provision allows the State to make any law relating to the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business. Thus, the right to practice law is not only a statutory right but also a fundamental right protected under Article 19(1)(g).104 However, the right of citizens to pra....
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.... the fees. Justice S R Das (as the learned Chief Justice then was) observed that a "licence fee on a business not only takes away the property of the licensee but also operates as a restriction on his right to carry on his business, for without the payment of such fee the business cannot be carried on at all." It was held that the restriction on the fundament right under Article 19(1)(g) can be imposed by the State according to Article 19(6). It was held that an illegal impost is an unreasonable restriction on the right to carry on occupation, trade or business under Article 19(1)(g): "12. [...] If, therefore, the licence fee cannot be justified on the basis of any valid law no question of its reasonableness can arise, for an illegal impost must at all times be an unreasonable restriction and will necessarily infringe the right of the citizen to carry on his occupation, trade or business under Article 19(1)(g) and such infringement can properly be made the subject-matter of a challenge under Article 32 of the Constitution." 99. In Mohammad Yasin (supra), the United Provinces Town Areas Act 1914 empowered the Town Area Committee to charge fees for the use or occupation o....
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....) delegated legislation which is contrary to or beyond the scope of the legislative policy laid down by the parent legislation places an unreasonable restriction in violation of Article 19(1)(g).112 102. According to the current enrolment fee structure of the SBCs, an advocate has to pay anywhere between Rupees fifteen thousand to Rupees forty-two thousand as a pre-condition to enrolment. As held in the above segments of this judgment, the SBCs charge enrolment fees in excess of the stipulated fee prescribed under Section 24(1)(f). The excess enrolment fee imposed by the SBCs is without authority of law. Compounded with this there are no reasonable criteria behind the decision of the SBCs to charge such exorbitant amounts as enrolment fees. The SBCs cannot have unbridled powers to charge any fees given the express legislative policy under Section 24(1)(f). Imposing excessive financial burdens on young law graduates at the time of enrolment causes economic hardships, especially for those belonging to the marginalized and economically weaker sections of the society. Therefore, the current enrolment fee structure charged by the SBCs is unreasonable and infringes Article 19(1)(g). ....
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....hall constitute an Advocates Welfare Fund. Section 15 mandates the SBCs to pay annually to the welfare fund an amount equal to twenty per cent of the enrolment fee received by it under Section 24(1)(f) of the Advocates Act.114 This decision will not have any effect on the obligation of the SBCs under Section 15 because they will continue to charge the enrolment fee as stipulated under Section 24(1)(f). 107. The SBCs and the BCI are directed to ensure that the fees charged at the time of enrollment comply with Section 24(1)(f) and the provision is not defeated either directly or indirectly under the garb of different nomenclatures. The SBCs cannot charge an enrolment fee or miscellaneous fees above the amount prescribed in Section 24(1)(f). No case is made out for this Court to exercise its power under Article 142 to implement the BCI Draft Enrolment Rules in their current form. 108. The result of this decision would have entitled advocates who have paid the excess enrolment fee to a refund from the SBCs.115 The SBCs have been levying the enrolment fees for a considerable duration and utilizing the collected amounts to carry out their day-to-day functioning. Therefore, we decl....
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....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 in 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 the 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]; (e) he fu....
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....an enrolment fee of Rs 125 may be charged by the State Bar Council from each entrant out of which Rs. 25 may be paid by the State Bar Council to the All India Bar Council."] 19 The Legal Practitioners Bill 1959, Report of the Joint Committee (28 March 1960) xiii. (Raghubir Sahai and Khuswant Rai, the members of the Joint Committee noted: "The Constitution of an All India Bar was demand of the country since long and this Bill has been brought forward to meet it. Its aim would be to bring in as many eligible lawyers within its fold as possible. That is why the enrolment fee has been reduced from Rs. 500/- originally proposed in the Bill to Rs. 250/-. It would have been much better if this could be reduced to Rs. 125/- as suggested by the Law Commission and the stamp duty would have been done away with altogether.") 20 Shri Shankaraiya, Legal Practitioners Bill, Lok Sabha (27 April 1961) 14162 21 Legal Practitioners Bill, Lok Sabha (27 April 1961) 14164 22 Rajya Sabha, Advocates Bill 1961 (4 May 1961) 2125. 23 Shri H R Bhardwaj, Minister of State in the Ministry of Law, Justice and Company Affairs, Lok Sabha (26 November 1992) 451. [The min....
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....l Estate v. Municipal Corporation of Greater Mumbai, (2015) 11 SCC 161 [25] 45 (1992) 3 SCC 285 [7] 46 Article 110(2), Constitution of India. [It reads: "110. Definition of "Money Bills"- [...] (2) A Bill shall not be deemed to be a Money Bill by reason only that it provides for the imposition of fines or other pecuniary penalties, or for the demand or payment of fees for licences or fees for services rendered, or by reason that it provides for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes."] 47 (1954) 1 SCC 412 48 Shirur Mutt (supra) [48] 49 H H Sudhindra Thirtha Swamiar v. Commissioner for Hindu Religious and Charitable Endowments, 1963 Supp (2) SCR 302 [18]. [It was observed: "18. [...] A levy in the nature of a fee does no cease to be of that character merely because there is an element of compulsion or coerciveness present in it, not is it a postulate of a fee that it must have direct relation to the actual services rendered by the authority to each individual who obtains the benefit of service. If with a view to provide a specif....
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....) 5 SCC 516 74 (2001) 4 SCC 202 75 (2011) 5 SCC 360 76 "AAI" 77 "AAI Act" 78 Section 22A, AAI Act. 79 See Global Energy Ltd. v. Central Electricity Regulatory Commission, (2009) 15 SCC 570 [25] 80 2016 SCC OnLine Ker 41055 81 Bar Council of Kerala v. T Koshy, W A No. 2170 of 2017. 82 Bar Council of Kerala v. N S Gopakumar, SLP(C) No. 44268 of 2018. 83 Akshai M Sivan v. Bar Council of Kerala, WP(C) No. 3068 of 2023 (order dt. 12 June 2023) 84 Communication dated 28 January 2017 by the BCI to the secretaries of the SBCs, BCI:D 529/2017(Council) dated 28 January 2017. 85 Rule 40, Section IVA, Chapter II, Part VI, BCI Rules. [It reads: "40. Every Advocate borne on the rolls of the State Bar Council shall pay to the State Bar Council a sum of Rs. 300 every third year commencing from 1st August, 2001 along with a statement of particulars as given in the form set out at the end of these Rules, the first payment to be made on or before 1st August, 2001 or such extended time as notified by the Bar Council of India or the concerned State Bar Council. Provided further however t....