Gaurav Kumar v. Union of India & Ors.

Akshai M Sivan v. Bar Council of Kerala [Writ Petition (Civil) No. 3068 of 2023 in the High Court of Kerala]; Manimaran v. Bar Council of India [Writ Petition (MD) No. 8756 of 2023 in the High Court of Madars at Madurai]; Amey Shejwal v. Bar Council of Maharashtra and Goa [Writ Petition No. 3795 of 2021 in the High Court of Bombay]; Bar Council of Maharashtra v. Union of India (2002) SCC OnLine Bom 251; T Koshy v. Bar Council of Kerala (2016) SCC OnLine Ker 41055; Bar Council of Kerala v. T Koshy [W A No. 2170 of 2017] – referred to. George Walkem Shannon v. Lower Mainland Dairy Products Board., 1938 AC 708 – referred to. Books and Periodicals Cited Draft Uniform Rules (For Enrolment and Other Fees To Be Charged By The State Bar Councils) 2023; Report of the All-India Bar Committee (1953) 15; The Legal Practitioners Bill 1959, Report Digital Supreme Court Reports [2024] 7 S.C.R. 1497 of the Joint Committee (28 March 1960); Shri Shankaraiya, Legal Practitioners Bill, Lok Sabha (27 April 1961) 14162; Legal Practitioners Bill, Lok Sabha (27 April 1961) 14164; Rajya Sabha, Advocates Bill 1961 (4 May 1961) 2125; Law Commission of India, Fourteenth Report, Reform of Judicial Administration 1958 (Volume 1) 575; Resolution No.

32 of 2013, Gazette Notification dated 28 June 2013; BCI. D 7114/2016(C1) dated 22 December 2016; Communication dated 28 January 2017 by the BCI to the secretaries of the SBCs, BCI:D 529/2017(Council) dated 28 January 2017; Challenges for Dalits in South Asia’s Legal Community, Chapter III – Dalit Justice Defenders in India, American Bar Association (2021) 16; Challenges for Dalits in South Asia’s Legal Community, Chapter III – Dalit Justice Defenders in India, American Bar Association (2021) 17 – referred to. List of Acts Legal Practitioners Act, 1879; Indian Bar Councils Act, 1926; Advocates Act, 1961; Constitution of India; Bar Council of India Rules; Advocates Welfare Fund Act, 2011. List of Keywords All India Bar Committee; Delegated Legislation; Power to levy fees; Regulatory fees; State Bar Councils; Enrolment of advocates; Enrolment fees of advocates; Valid pre-condition; Substantive equality; Arbitrariness; Article 14 of Constitution of India; Article 19(1)(g) of the Constitution; Section 24(1)(f) of the Advocates Act, 1961; Bar Council of India; Enrolment fee of advocates; Enrolment of advocates; Miscellaneous fees; Article 265 of the Constitution of India; Article 366(28) of the Constitution of India; Article 110 of the Constitution of India; Legislative policy; Marginalized communities in legal profession; Dignity of an individual; Reasonable restrictions; Excessive Enrolment fees; Financial implications for State Bar Councils.

Case Arising From CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 352 of 2023 (Under Article 32 of The Constitution of India) With T.C.(C) Nos. 28, 29, and 30 of 2023, T.P.(C) Nos. 2526, 1982, 2088-2089, 2171, 2123 and 2734 of 2023 Gaurav Kumar v. Union of India and Ors. 1498 [2024] 7 S.C.R. Appearances for Parties By Courts Motion Solicitor General of India, K.M. Natraj, ASG, Raghenth Basant, R. Balasubramanian, Manan Kumar Mishra, S. Prabakaran, Apurba Kumar Sharma, C. Nageswara Rao, V. Giri, Sr. Advs., Ms. Kaushitaki Sharma, Ms. Hima Bhardwaj, Ms. Purnima Krishna, Sachin Patil, Rohit Kumar, Shailendra Singh, Adarsh Mishra, Mrs. Usha Prabakaran, Ms. Divya, Ms. Rv Shaarumathi, G Jai Singh, Muthu Ganesa Pandian, M/s. Ram Sankar & Co, Dr. Arvind S. Avhad, Rajat Kapoor, Sushil Sonkar, Sanjay Shirsat, Mrs. Resmi Shirsat, Shivakant Vats, Rohit Jaiswal, Mangesh Naik, Dnyaneshwar N Telange, Kailas Bajirao Autade, Ravindra Sadanand Chingale, Dr.

Ravindra Chingale, Ms. Rashi Sheth, Ms. Sumbul Ausaf, Ms. Deeplaxmi Matwankar, Dr. Rakesh Kumar, Ms. Kalyani Lal, Prabhas Bajaj, Anmol Chandan, Sharath Nambiar, Ms. Ruchi Gour Narula, Shivank Pratap Singh, Satvik Mishra, Arvind Kumar Sharma, Shubham Saurav, Gaurav Sharma, M/s. Axess Legal Corp, Nitin Lonkar, Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla, Sourav Singh, Aditya Krishna, Ms. Preet S. Phanse, Adarsh Dubey, Ms. Deepanwita Priyanka, M. Naveen, Ms. Anjul Dwivedi, G Anandan, Dr. Ram Sankar, B Sasi Kumar, Mrs. Harini Ramsankar, M/s. Ram Sankar & Co., Sudarshan Singh Rawat, Ms. Anubha Dhulia, Ms. Saakshi Singh Rawat, Byrapaneni Suyodhan, Kumar Shashank, Ms. Tatini Basu, Purvish Jitendra Malkan, Ms. Dharita Purvish Malkan, Alok Kumar, Kush Goel, Dhruva Kumar, Ajay Kuamr Agarwal, Sachin Jain, Vishal, Rajiv Ranjan Dwivedi, Ms. Radhika Gautam, Mohammed Sadique T.A., Alim Anvar, Rahul Narang, Rao Vishwaja, Harshed Sundar, Nihar Dharmathikari, Niranjan Sahu, Umakant Misra, Mrs.

Prabhati Nayak, Debabrata Dash, Ms. Apoorva Sharma, Abhishek Gautam, Sanjay Sharma, Keshari Kumar Tiwari, Karan Kapur, Dr. Ravinder Kumar Singh, Ms. Kamayani Tripathi, Ajit Pathak, Yusuf, Sanpreet Singh Ajmani, Sandeep Malik, Amit Kumar, Vishal Gera, Pukhrambam Ramesh Kumar, Karun Sharma, Ms. Anupama Ngangom, Ms. Rajkumari Divyasana, Ms. Vrinda Bhandari, Ms. Pragya Barsaiyan, Madhav Aggarwal, Ms. Anandita Rana, Durgesh Ramchandra Gupta, Vikas Verma, Mrs. Sapna Verma, Mayank Choudhary, Shafik Ahmed, Danish Saifi, Ms. Anju, Bibhav Kumar Singh, Satya Prakash Gautam, Shahid Akhtar, Advs. for the appearing parties. Gaurav Kumar, Petitioner-in-person Digital Supreme Court Reports [2024] 7 S.C.R. 1499 Judgment / Order of the Supreme Court Dr Dhananjaya Y Chandrachud, CJI Judgment Table of Contents* A. Background....................................................................... 4 B. Issues................................................................................. 8 C. Submissions...................................................................... 8 D. Legal background............................................................ 13 i.

All India Bar Committee........................................... 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 fee cannot be a valid pre-condition................................................. 48 ii.

Article 14: substantive equality and manifest arbitrariness.............................................................. 51 iii. Article 19(1)(g): unreasonableness......................... 60 H. Financial implications for the SBCs and the BCI ....... 65 I. Conclusions...................................................................... 67

The proceedings under Article 32 of the Constitution address a challenge to the validity of the enrolment fees charged by State Bar * Ed. Note: Pagination as per the original Judgment. Gaurav Kumar v. Union of India and Ors. 1500 [2024] 7 S.C.R. Councils.1 The grievance is that the fees charged by the SBCs at the time of admission of persons on State rolls are more than the enrolment fee prescribed under Section 24(1)(f) of the Advocates Act 1961.2 A. Background

The Advocates Act was enacted to amend and consolidate the law relating to legal practitioners and constitute a common Bar for the whole country. The enactment establishes the SBCs3 and the Bar Council of India.4 Section 6 of the Advocates Act entrusts myriad functions to the SBCs. These functions comprehend entry into and conduct of legal professionals, including admission of advocates to their rolls, preparation and maintenance of rolls, determination of cases of misconduct against advocates on the rolls and safeguarding the rights, privileges and interests of advocates. The statute empowers the SBCs to organize legal aid for the poor, promote and support law reform, conduct academic discourses, and publish journals and papers on matters of legal interest.

The functions of the BCI have been enumerated under Section 7. These include laying down standards of professional conduct and etiquette for advocates, enunciating the procedure to be followed by its disciplinary committee and the disciplinary committee of the SBCs, safeguarding the rights, privileges, and interests of advocates, and promoting law reform. BCI is empowered to exercise general supervision and control over the SBCs. BCI is also empowered to impart legal education and lay down standards for legal education in consultation with the universities whose degrees in law would be a qualification for enrolment as an advocate and, for that purpose, visit and inspect universities.

Chapter III of the Advocates Act pertains to the admission and enrolment of advocates. Section 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 1 2 3 4 5 “SBCs” “Advocates Act” Section 3, Advocates Act “BCI”; Section 4, Advocates Act Section 25, Advocates Act Digital Supreme Court Reports [2024] 7 S.C.R. 1501 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

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; 6 7 Section 22, Advocates Act Section 24, Advocates Act [It reads: 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 practise law in that other country; (b) he has completed the age of twenty-one years; (c) he has obtained a degree in law— (i) (ii) [(iii) before the [12th day of March, 1967], from any University in the territory of India; or 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 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] 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] [(iv) [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 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 fee 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 that 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 examination.]] Gaurav Kumar v.

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 “fees” and “charges” in addition to the enrolment fees in the form of library fund contributions, administration fees, identity card fees, welfare funds, training fees, processing fees, certificate fees, etc. The amount of fees charged by the SBCs differ significantly. This results in a situation where a law graduate has to pay somewhere between Rupees fifteen thousand to Rupees forty-two thousand (depending upon the SBC) as cumulative fees at the time of enrolment.

The petitioner instituted proceedings under Article 32 of the Constitution seeking a declaration that the fees charged by the SBCs at the time of enrolment violate Section 24(1)(f) of the Advocates Act. In its order dated 10 April 2023, this Court issued notice while observing that the petitioner has raised a significant issue about the enrolment fees charged by the SBCs. By an order dated 17 July 2023, this Court transferred to itself the petitions dealing with similar issues from the High Court of Kerala,8 the High Court of Judicature at Madras at Madurai,9 and the High Court of Judicature at Bombay.10 Given this background, we now deal with the challenge to the validity of enrolment fees charged by the SBCs. B. Issues

The petitions give rise to the following issues: 8 9 Akshai M Sivan v. Bar Council of Kerala, Writ Petition (Civil) No. 3068 of 2023 Manimaran v. Bar Council of India, Writ Petition (MD) No. 8756 of 2023 10 Amey Shejwal v. Bar Council of Maharashtra and Goa, Writ Petition No. 3795 of 2021 Digital Supreme Court Reports [2024] 7 S.C.R. 1503 a. Whether the enrolment fees charged by the SBCs are in contravention of Section 24(1)(f) of the Advocates Act; and b. Whether payment of other miscellaneous fees can be made a pre-condition for enrolment. C. Submissions

Mr Gaurav Kumar, the petitioner-in-person, made the following submissions: a. Section 24(1)(f) expressly prescribes the enrolment fee chargeable by the SBCs and the BCI for persons to be admitted as an advocate. SBCs are charging exorbitant enrolment fees, often under different heads, in derogation of Section 24(1)(f); b. Once there is a specific provision prescribing enrolment fees, the SBCs or the BCI through their delegated rule-making power cannot charge fees beyond the substantive provision. Therefore, the BCI and the SBCs cannot invoke their powers to frame rules under Section 49(1) and Section 28(1) of the Advocates Act respectively to prescribe enrolment fees that are at variance with Section 24(1)(f); c. The term ‘subject to the provisions of this Act’ at the beginning of Section 24 has been misconstrued to permit charging enrolment fees beyond 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 Gaurav Kumar v. Union of India and Ors. 1504 [2024] 7 S.C.R. 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.

Mr Manan Kumar Mishra, senior counsel made the following submissions on behalf of the BCI: a. Bar Councils require adequate operational funds to effectively discharge their functions. They require funds for day-to-day functioning including administrative expenses, staff salaries, infrastructure maintenance and technological advancements. Inadequate funding will hinder the ability of SBCs to comply with their statutory obligations under the Advocates Act; b. The enrollment fee prescribed under Section 24(1)(f) was fixed by the legislature in 1993 and has not been modified since. It fails to account for inflation and is not adequate to meet current financial demands. Unlike other professional bodies that levy an annual subscription fee on members, SBCs rely on the one-time enrolment fee; c. The fees charged by SBCs at the time of enrollment include additional expenses incurred in the enrolment process along with the enrolment fee prescribed by the Act, such as online data processing fee, identity card fee and verification process fee.

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).

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 services such as library fee and ID card fee under their rule-making powers under Section 15 and Section 28; and (iii) the additional charges are essential to enable the SBCs to fulfil their statutory functions. In order to fulfil these statutory functions, the SBCs inter alia run various welfare programs, insurance schemes, seminars and training programmes, which require adequate funding.

Mr Raghenth Basant, senior counsel appearing for the petitioners before the Kerala High Court assailed the levy of enrollment fees by 11 “BCI Draft Enrolment Rules” Gaurav Kumar v. Union of India and Ors. 1506 [2024] 7 S.C.R. the Bar Council of Kerala in excess of the fee prescribed in Section 24(1)(f). Mr Basant made the following submissions: a. Rules prescribed by the SBCs under general provisions such as Section 24(1)(e) cannot be with respect to the enrolment fee which has been specifically dealt with in Section 24(1)(f); b. Rule-making powers cannot be used to frame rules contrary to the Advocates Act, especially in the absence of any provision stipulating that the BCI or the SBCs are entitled to increase the statutory enrolment fee as they deem fit; c. The 1993 amendment which increased the statutory enrolment fee to its present form indicates that Parliament has been conscious of the need to increase the enrolment fee as and when required and is the only competent authority to carry out such changes; and d. Other fees charged by the Bar Council of Kerala, such as the sums charged under Rule 40 of Section IVA under Chapter II of Part VI of the Bar Council of India Rules12 cannot be made a condition precedent for enrolment. Rule 40 of the BCI Rules prescribes that the payment be made by an advocate on the rolls of the SBC and thus, it cannot be a pre-requisite for enrolment. D. Legal background i. All India Bar Committee

The establishment of the High Courts by Letters Patent in the Presidencies of Calcutta, Bombay, and Madras brought all courts in the territories of British India under a unified system. The Letters Patent also allowed the High Courts to enroll advocates, vakils, and attorneys. The Legal Practitioners Act 1879 empowered the High Courts not established by royal charters to make rules for the qualifications and admission of persons seeking to be advocates of the Court.13 Initially, barristers and solicitors predominated the Original Side practice in the High Courts.14 Gradually, both advocates and vakils (who were Indian non-barristers) could act and plead before 12 “BCI Rules” 13 Section 41, Legal Practitioners Act 1879 14 Report of the All-India Bar Committee (1953) 15 Digital Supreme Court Reports [2024] 7 S.C.R. 1507 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.

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 Committee to inquire into this issue and provide a feasible legal solution.

The Committee recommended setting up of the SBCs and an All- India Bar Council, uniform minimum qualification for admission to the roll of Advocates, a common roll of Advocates maintained by the respective SBCs, and permitting the enrolled advocates to practice in any court in India, including the Supreme Court. The Committee’s observations on the finances of the BCI and the SBCs are relevant: “It is obvious that in order to carry on its duties the All-India Bar Council and the State Bar Councils shall require funds. At present the Advocates, at the time of their enrolment, pay a certain amount ranging from Rs. 25/- to Rs. 100/- which goes to the Bar Council besides Rs. 250/- to Rs. 1,125/- which goes to the State. Entrants to the professions other than the legal profession are not required to pay any amount to the State as and by way of admission fee. Persons exercising any profession, calling or vocation including Advocates in several places have to pay a licence fee, but there is no reason why there should be a taxation 15 16 Ibid “1926 Act” Gaurav Kumar v. Union of India and Ors. 1508 [2024] 7 S.C.R. by the State at the time of enrolment of Advocates only. The Committee suggests that an Advocate at the time of his admission shall pay a sum of Rs. 500/- to the State Bar Council to which he makes his application and nothing should be payable to the State. This amount may be paid in a lump sum or an Advocate may elect to pay annual amounts of Rs. 50/- with an option to pay Rs. 500/- at any time, amounts already paid not being deducted. Those Vakils and Pleaders who according to the recommendations of the Committee become eligible to be enrolled as Advocates may pay Rs. 500/- in lump sum or an annual amount of Rs. 50/- with the option mentioned above. Each State Bar Council shall for the first five years contribute 40% of the enrolment fees received by it to the All-India Bar Council. At the end of the first 5 years the proportion of the contribution may be reconsidered.” 17 (emphasis added)

The Committee was aware of the fact that the SBCs will require funds to carry out their functions and duties. Consequently, the Committee recommended that an advocate should pay an enrolment fee of Rupees five hundred to the SBCs “at the time of his admission”. The Committee suggested that this amount could either be paid as a lump sum or on a yearly instalment 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

In 1959, the Legal Practitioners Bill 1959 was introduced in Parliament. The Bill was referred to a Joint Committee of Parliament 17 All-India Bar Committee (supra) 40 18 Law Commission of India, Fourteenth Report, Reform of Judicial Administration 1958 (Volume 1) 575. [It observed:

It appears to us that the amount of Rs. 500 proposed by the Committee is excessive. At present various State bar Councils are receiving payments which range from Rs. 50 to Rs. 100 from each entrant to the profession and so far we have been able to ascertain, not only are the amounts received sufficient to finance their activities but some of these Councils have accumulated out of these and other receipts substantial amounts which have been invested by them. The creation of the All India Bar Council envisaged by the Bar Committee will no doubt involve substantial additional expenditure. Considering all aspects of the matter, we suggest that 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.

] Digital Supreme Court Reports [2024] 7 S.C.R. 1509 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

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 further reduced or abolished altogether.21 The then Minister of Law (Mr A K Sen) justified the rationale for prescribing Rupees two hundred fifty as enrolment fee thus:

So far the Bar Council is concerned, a fee of Rs. 250 is not very unreasonable especially having regard to the fact that when we are setting up an autonomous body, we must give it enough funds to make it effective and useful. If it is to discharge all the functions given to it under this statute, then it requires funds and therefore Rs. 250 per entrant is not too much of a fee to pay when the Bar Council is going to function in so many different ways.

22 (emphasis added) The statement of the Law Minister indicates that the enrolment fee was meant to allow the SBCs to effectively discharge “all functions” under the Advocates Act. 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. Gaurav Kumar v. Union of India and Ors. 1510 [2024] 7 S.C.R.

In 1973, the enrolment fee payable by the members of the Scheduled Castes and Scheduled Tribes was reduced to Rupees one hundred twenty-five. Subsequently, Section 24(1)(f) was amended in 1993 to revise the fees payable by general candidates from Rupees two hundred fifty to Rupees seven hundred fifty, without increasing the fees payable by candidates belonging to the SC and ST category. The enrolment fees were increased given the representations made by the Bar Councils.23 This indicates that Parliament is aware and responsive to the financial problems faced by the Bar Councils.24 ii. Advocates Act: A Complete Code In O N Mohindroo v. Bar Council of Delhi,25 a Constitution Bench held that the Advocates Act was enacted by Parliament under the legislative field of Entries 7726 and 7827 of List I. It was observed that the object of the Advocates Act is to constitute one common Bar for the whole of the country and to provide machinery for its regulated functioning. It was further observed that the expression “persons entitled to practice” under Entries 77 and 78 of List I includes within its scope the determination or prescription of qualifications and conditions entitling a person to practice as an advocate before the Supreme Court or the High Courts.28

In Bar Council of U P v. State of U P,29 the issue before a three- Judge Bench was whether the State legislature could impose stamp duty on the certificate of enrolment issued by the SBCs. It was held that the enrolment fee payable under Section 24(1)(f) is covered by Entry 96 in List I. Concerning the imposition of stamp duty, it was 23 Shri H R Bhardwaj, Minister of State in the Ministry of Law, Justice and Company Affairs, Lok Sabha (26 November 1992) 451. [The minister stated:

The Bar Council of India and the State Bar Councils represented that the expenses involved in the administration of the Bar Council of India and the State Bar Councils are growing every year and that it has become necessary to revise the enrolment fee upwards from Rs. 250/- to Rs. 750/- without disturbing the fee payable in case of persons belonging to Scheduled Castes and Scheduled Tribes.

] 24 Bar Council of Maharashtra v. Union of India, 2002 SCC OnLine Bom 251 [3] : 25 [1968] 2 SCR 709 : 1968 SCC OnLine SC 3 26 Entry 77, List I, Seventh Schedule, Constitution of India. [It reads: 77. Constitution, organization, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practice before the Supreme Court”] 27 Entry 78, List I, Seventh Schedule, Constitution of India. [It reads: 78. Constitution and organization (including vacations) of the High Court except provisions as to officers and servants of High Court; persons entitled to practice before High Courts.] 28 O N Mohindroo (supra) [9]; Bar Council of U P v. State of U P (1973) 1 SCC 261 [11] 29 [1973] 2 SCR 1073 : (1973) 1 SCC 261 Digital Supreme Court Reports [2024] 7 S.C.R. 1511 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.

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.

The 1926 Act did not prescribe any qualifications to be possessed by persons applying for admission as advocates. Under the 1926 Act, the Bar Councils prescribed qualifications, but the enrollment was carried out by the High Courts. Under the Advocates Act, the enrolment process is completely undertaken by the SBCs. The SBCs are mandated to maintain and prepare a State roll and admit persons as advocates on the roll if they fulfil the statutory prescriptions, along with any other qualifications laid down by the SBCs. Section 24(1) of the Advocates Act statutorily engrafts the minimum qualifications to be possessed by advocates seeking enrolment. The provision specifies the qualifications to be possessed by persons to be admitted as an advocate on a State roll. Additionally, the SBCs can also specify other conditions by rules. 30 Bar Council of U P (supra) [14] Gaurav Kumar v. Union of India and Ors. 1512 [2024] 7 S.C.R.

Section 24A provides that no person shall be admitted on a State roll if he is: (i) convicted of an offence involving moral turpitude; (ii) convicted of an offence under the provisions of the Untouchability (Offences) Act 1955; and (iii) dismissed or removed from employment or office under State on any charge involving moral turpitude. Section 25 provides that an application for admission as an advocate shall be made to the SBC within whose jurisdiction the applicant proposes to practice. Section 26 mandates the SBCs to refer every application for admission to their enrolment committee for decision. The SBCs are also empowered to remove the names of advocates from the State roll.31 Section 28 empowers the SBCs to make rules for the admission and enrolment of advocates.

The provisions of the Advocates Act indicate that it provides a complete machinery32 to deal with the admission and enrolment of advocates. The SBCs are vested with sufficient powers to ensure effectual and complete implementation of the enactment. In Dr Haniraj L Chulani v. Bar Council of Maharashtra and Goa, this Court held that the Advocates Act provides a complete code for regulating the legal education and professional qualifications of an aspirant seeking entry into the legal profession.33 iii. Delegated legislation

The basic principle underlying the concept of delegated legislation is that the legislature cannot directly exert its will in every detail.34 It lays down the legislative policy and delegates the subsidiary or ancillary powers to the 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 31 Section 26A, Advocates Act 32 See Girnar Traders v. State of Maharashtra (2011) 3 SCC 1 [80] 33 (1996) 3 SCC 342 [17] 34 Mahachandra Prasad Singh (Dr.) v. Bihar Legislative Council (2004) 8 SCC 747 [13] 35 In re Delhi Laws Act 1912 (1951) SCC 568 [22] 36 Vasantlal Maganbhai Sanjanwala v. State of Bombay, 1960 SCC OnLine SC 27 [4] Digital Supreme Court Reports [2024] 7 S.C.R. 1513 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

Although delegated legislation enjoys the presumption of constitutionality, it does not enjoy the same immunity as the parent legislation. It is now well-established39 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 to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act; (v) repugnance to any other enactment; and (vi) manifest arbitrariness.

Modern legislation often contains provisions enabling the delegate of the legislature to frame subordinate legislation. The statutory provision for delegation is often couched in general terms empowering the delegate the power to frame rules “to carry out the purposes of this Act” or a particular segment of the statute contained in a Chapter. The general provision is then followed by a provision enumerating specific matters on which the delegate may frame rules. A similar legislative scheme is reflected in Sections 15 and 28 of the Advocates Act. Where a rule-making power is conferred upon the delegate in general terms, a subsequent enumeration of matters on which the delegate may frame rules is illustrative and does not limit the scope of the general power.40 The enumerated matters in such a situation 37 Harishankar Bagla v. State of MP (1954) 1 SCC 978 [12] 38 Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills, Delhi, 1968 SCC OnLine SC 13 [13], [71] 39