Important Points
1. Bar Council of India Training Rules, 1995 prescribing pre-entrolment training and examination are ultra vires rule making power of BCI.
2. By the statutory provisions of Sections 24(1) and Section 24A, after 1973, no legislative intention can be culled out requiring an applicant law graduate seeking enrolment as advocate under the Act to undergo any pre-enrolment training as a condition for enrolment nor its absence to be treated as a disqualification for enrolment.
3. Granting of admission to a person for being enrolled as an advocate under the Act is a statutory function of the State Bar Council only. The Bar Council of India has no role to play on this aspect. All it has to do is to approve any Rules framed by the State Bar Council under Section 24(1) laying down further qualifications for a person to be enrolled by it on the State roll as an advocate; BCI cannot exercise rule making power under Section 24(1) for imposing an additional condition of qualification for a person to be enrolled on State.
4. Under Section 7 of the Advocates Act, in respect of promotion of legal education, all that the Bar Council of India can do is to suggest ways and means to promote such legal education to be imparted by the Universities and for that purpose it may lay down the standards of education, syllabi in consultation with the Universities in India.; BCI cannot itself take up the role of laying down pre-enrolment training for applicants seeking to enter legal profession by getting enrolled under Section 24 of the Act.
5. The rule making power under Section 49(1)(ag) of the Advocates Act is ancillary to the statutory function entrusted to the Bar Council of India by Section 24(3)(d) and it cannot travel beyond the said statutory sphere and as such BCI cannot frame rule prescribing pre-enrolment training as a condition for being a person enrolled as an Advocate.
6. Rule making power under Section 49(1)(ah) of the Advocates Act deals with a situation which is post enrolment of an advocate and does not deal with pre-enrolment situation for a candidate seeking enrolment and the BCI cannot frame rules prescribing pre-enrolment training and examination.
7. Provisional enrolment envisaged by the Bar Council of India Rules, 1995 is totally dehors the scheme of the Advocates Act, 1961.

Headnote:(i) Bar Council of India Training Rules, 1995 read with Sections 7, 24(3)(d) and 49(1) and (2)-Training to entrants of legal profession-Pre-enrolment and apprenticeship training-Validity of Rules-Granting of admission to a person for being enrolled as an advocate is statutory function of State Bar Councils-Bar Council of India (BCI) has no role to play-BCI has to approve rules framed by State Bar Councils-BCI cannot exercise rule making power u/s 24(1) for imposing additional condition of qualification-Function of BCI not enlarged to cover provision for pre-enrolment training - Rule making power of BCI u/s 49(1)(ag) enables BCI to add category of eligible for enrolment but not to curtail existing eligibility u/s 24(1)-Rule making power of BCI u/s 49(1)(ah) does not deal with pre-enrolment situation - Provisional enrolment totally de hors scheme of Act-BCI Training Rules ultra vires rule making power of BCI-Rules still born being beyond rule making power of BCI-Judgment will have no retrospective effect-Judgment will not apply to applicants for enrolment who have earlier applied for enrolment and have successfully completed pre-enrolment training as per impugned rules-Those who applied for enrolment but not completed training and those who apply after this judgment will not have to undergo pre-enrolment training.
       Held : Between 1961 to 1964, the State Bar Council, as a condition of enrolment, required an applicant to undergo a course of training in Law and also required him to pass the exmination after such a training. But after 1964 till 1973, it was permissible for the State Bar Council to prescribe a course of training in Law as a precondition for enrolment of a candidate and he was also required to pass the requisite examination during the training or even after completion of the training course and such examination could be prescribed by the State Bar Council concerned only. After 31st January, 1974, the State Bar Councils were deprived of their powers to prescribe a course of pre-enrolment training in Law and examination to be undergone by Law graduates who were seeking enrolment as ‘advocates’ on the State roll. (Paras 8 & 9)
       So far as three years LLB Degree course is concerned, the syllabus prescribed by the Bar Council of India itself by its communication dated 21st October, 1997 addressed to the Registrars of all the Universities imparting Legal Education in India, the Deans of faculties of Laws of Universities and the Members of the Law colleges makes it clear that practical training to be given to a Law student prior to his getting degree of Law from University after completing three years course was to be included in the course of study. As practical training was suggested by the Bar Council of India itself for being included in the curriculum to be prescribed by the Universities for Law students, it obviously became redundant for providing further practical training before entrolment of such trained graduates in Law. That is precisely the reason why after January, 1974 need for pre-enrolment training was not insisted upon by the legislature and that too at the suggestion and on the recommendation of the Bar Council of India itself. (Para 12)
       The Legislature u/s. 24A has enumerated three categories of persons who are disqualified from being enrolled as advocates even though they might otherwise fulfil the requirements of Section 24 sub-section (1). The imposition by the impugned Rules of the requirement of an applicant to undergo pre-enrolment training does not result into any disqualification of such an applicant if he has not undertaken such a training as it is not treated by the legislature as one of such disqualifications as envisaged by Section 24A. In other words, by the statutory provisions of Sections 24(1) and Section 24A, after 1973, no legislative intention can be culled out requiring an applicant law graduate seeking enrolment as advocate under the Act to undergo any pre-enrolment training as a condition for enrolment nor its absence to be treated as a disqualification for enrolment. A conjoint reading of Section 28, sub-section 2(b) and Section 24(1)(d) as it existed on the statute book prior to 31.1.1974 makes it clear that from 31st January, 1974, the legislature did not think it fit to clothe the State Bar Councils with the power to prescribe any pre-enrolment training and exmination to be undergone by an applicant for enrolment as an ‘Advocate’ on the State roll. As clause (d) was deleted from Section 24(1), simultaneously the rule making power earlier conferred on the State Bar Councils for effective exercise of that statutory function also stood withdrawn. Meaning thereby, from 31.1.1974 any person who had a requisite Law degree as laid down by Section 24 sub-section (1), became entitled to be enrolled as an ‘Advocate’ on the State roll maintained by the State Bar Council and he was not required to undergo any such pre-enrolment training which he was required to undergo prior to 31st January, 1974. It is also pertinent to note that sub-section (3) of Section 24 had remained operative from 1964 onwards all throughout till 1974 simultaneously with the then existing power of the State Bar Councils to prescribe pre-enrolment training and examination to be undertaken by the applicants desirous of being enrolled as advocates. When both these provisions simultaneously existed on the statute book from 1964 to the beginning of 1974, it becomes obvious that the question of prescribing pre-enrolment training and examination to be undertaken by an applicant for being enrolled as an advocate on the State roll, remained solely in the domain of the concerned State Bar Councils and the Bar Council of India had nothing to do on this aspect of the matter. Consequently Section 24(3) dealt with a topic not covered by the sweep of Section 24(1) especially clause (d) thereof. (Para 13)
       The next relevant Section for our present purpose is Section 29, which is found in Chapter IV dealing with ‘right to practise’. The ‘right to practise’ naturally is available to those advocates who are enrolled under the Act and whose names are mentioned in the State roll as per Section 17 of the Act. A new entrant to the legal profession obviously would be an ordinary advocate and not a senior advocate. But only two types of advocates are contemplated by Section 17 sub-section (2) of the Act as seen earlier. An ‘advocate’ can either be a senior advocate or a non-senior advocate, meaning thereby, other advocate. Moment a person is enrolled as an ‘advocate’ on the State roll, he would become statutorily entitled to practise as laid down under Section 17. A conjoint reading of Sections 23, 29 and 33 leaves no room for doubt that once a person is found qualified to be admitted as an advocate on the State roll having satisfied the statutory conditions of eligibility laid down in sub-section (1) of Section 24, he will automatically become entitled as of right to practise full-fledged in any Court including the Supreme Court. (Para 13)
       From 1964 till the end of 1973, the Bar Council of India had rule making power to exempt those persons who were otherwise required to undergo pre-enrolment training and passing an examination as prescribed by the State Bar Councils under Section 24(1)(d) as it stood on the statute book during that time. So the power of exemption from undergoing the training to applicants for enrolment as advocates was with the Bar Council of India, while the power to prescribe training and examination solely rested with the State Bar Councils concerned. Once the legislature by Act 60 of 1973, deprived the State Bar Councils of their rule making power to prescribe training and examination in view of deletion of clause (d) of sub-section (1) of Section 24 from the parent Act, the rule making power exempting categories of persons from pre-training and pre-examination prior to enrolment as earlier available to the Bar Council of India was also withdrawn and clause (af) in the present form got substituted with effect from 31.1.1974. Clauses (ag) and (ah) were already inserted in Section 49 by Act 21 of 1964 and they have continued to exist on the statute book all throughout till date. These topics of rule making power existed with the Bar Council of India at the same time when the provision regarding pre-service training and examination as a condition of enrolment existed on the statute book under Section 24(1)(d). In other words, between 1964 to the end of 1973 i.e. till 31st January, 1974, the topic of prescription of pre-enrolment training and pre-enrolment examination which remained strictly in the domain of the State Bar Councils remained excluded from the rule making powers provided by clauses (ag) and (ah) of Section 49 so far as the Bar Council of India was concerned. It is axiomatic that these general rule making powers in clauses (ag) and (ah) of Section 49 necessarily did not take in their sweep the power to provide for pre-enrolment training and examination for applicants who were seeking enrolment as advocates under the Act from 1964 to the end of 1973. It is easy to visualise that the legislature itself dispensed with the concept of pre-enrolment training and examination for new entrants to the Bar with effect from 31.1.1974. As noted earlier, this was done on the recommendation of the Bar Council of India itself. Under these circumstances, it cannot be presumed that same legislature without expressly including the same topic in the rule making power of the Bar Council of India, impliedly permitted the Bar Council of India itself to prescribe pre-enrolment training to new entrants at the Bar simultaneously with the withdrawal of the same training from 1974 onwards. It is difficult to countenance the submission of Shri Rao for the respondent Bar Council of India that there was any concurrent power to prescribe pre-enrolment training to applicants both with the State Bar Councils and the Bar Council of India between 1964 and end of 1973. (Para 13)
       It is no doubt true that sub-section (3) of Section 24 starts with a non obstante clause and provides that notwithstanding anything contained in sub-section (1), a person mentioned in categories (a), (aa), (c) and (d) may be admitted as an advocate on a State roll if he applies as laid down in clause (1) and fulfils the conditions specified in clauses (a), (b), (e) and (f) of sub-section (1). The objects and reasons for enacting the said provision, as noted earlier, have clearly laid down that it was felt by the legislature that despite the operation of Sections 17 and 24 of the Act, there were some persons who though not covered by the said provision and had not satisfied the conditions for enrolment as laid down in these provisions deserved to be enrolled as advocates. With that end in view, the Bar Council of India was provided with the rule making power under sub-section 3(d) of Section 24 by way of an enabling provision to extend the statutory coverage of Section 24(1) for bringing in such otherwise ineligible candidates for enrolment and even for such additional class of persons to be enrolled as advocates by exercise of rule making power of the Bar Council of India they had to satisfy the statutory requirements of clauses (a), (b), (e) and (f) of sub-section (1) of Section 24. This enabling provision available to the Bar Council of India by Rules to extend the scope of eligibility in favour of those who were ineligible under Section 24(1) to be enrolled as advocates did not touch upon the question of eligibility in connection with pre-enrolment training and examination or to put it differently, the enabling power available to the Bar Council of India to make eligible otherwise ineligible persons for enrolment as advocates under Section 24(1) did not cover the question of pre-enrolment training and examination at all. It must, therefore, be held on express language of Section 24 sub-section 3(d) that the rule making power of the Bar Council of India proceeded only in one direction, namely, for bringing into the sweep of Section 24(1) all those who were not entitled to be enrolled as advocates under the provisions of Section 24(1). The non-obstante clause with which sub-section (3) of Section 24 starts, provides that despite the conditions mentioned for enrolment in sub-section (1) of Section 24 might not have been satisfied by person concerned, if the Bar Council of India thought that such a person also deserved to be enrolled as an advocate, then rule making power under clause (d) of sub-section (3) of Section 24 could be resorted to by the Bar Council of India. The said power, to say the least, could be utilised for making ineligible persons eligible for enrolment despite what is stated under sub-section (1) of Section 24 but it could never be utilised in the reverse direction for disqualifying those from enrolment who were otherwise qualified to be enrolled as per sub-section (1) of Section 24. It was a power given to the Bar Council of India to extend the coverage of Section 24(1) and not to whittle it down. It is, therefore, difficult to appreciate the contention of learned senior counsel, Shri Rao for the Bar Council of India, that by exercise of the said rule, it could impose a further condition of disability of otherwise eligible candidate to be enrolled even if he had satisfied all the statutory conditions laid down by Section 24 sub-section (1). Section 24(3)(d) is beneficial and enabling power for bringing in the sweep of the umbrella of Section 24(1) those who would have otherwise been out of it which is conferred by sub-section (3)(d) of Section 24 on the Bar Council of India read with Section 49(1). It is also necessary to note that this power is available to the Bar Council of India 1964 all throughout till date, while between 1963 to January 1974, pre-enrolment training and examination could be prescribed as a condition by the State Bar Councils as per the then existing condition (d) of sub-section (1) of Section 24 for such enrolment. Consequently, it cannot be said that the rule making power under sub-section (3)(d) of Section 24 still enables the Bar Council of India, after deletion of Section 24(1)(d) to promulgate such a rule by which almost by back door such an additional condition for enrolment to restrict the entry of otherwise eligible candidates for enrolment under Section 24(1) can be imposed. Consequently, Section 24 sub-section (3)(d) of the Act cannot be legitimately invoked by the Bar Council of India for sustaining the impugned rules. (Para 16)
       To reiterate granting of admission to a person for being enrolled as an advocate under the Act is a statutory function of the State Bar Council only. The Bar Council of India has no role to play on this aspect. All it has to do is to approve any Rules framed by the State Bar Council under Section 24(1) laying down further qualifications for a person to be enrolled by it on the State roll as an advocate. Bar Council of India cannot exercise rule making power under Section 24(1) for imposing an additional condition of qualification for a person to be enrolled on State. (Paras 17 & 18)
       Section 49 of the Act, which deals with general power of Bar Council of India to make Rules. Sub-section (1) thereof lays down that the Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe on various topics as enumerated therein from clauses (a) to (j). A mere look at the aforesaid provision makes it clear that the rule making power entrusted to the Bar Council of India by the legislature is an ancillary power for fructifying and effectively discharging its statutory functions laid down by the Act. Consequently, Rules to be framed under Section 49(1) must have a statutory peg on which to hang. If there is no such statutory peg the rule which is sought to be enacted dehors such a peg will have no foothold and will become still born. The statutory functions entrusted by the legislature to the Bar Council of India under the Act so far as relevant for our present purpose and which could be relied upon by Shri Rao, learned senior counsel for the respondent Bar Council of India, are Section 7(1)(h) and Section 24(3)(d). We have seen earlier that neither of these statutory provisions entitles the Bar Council of India to provide for the disqualification or a disability or an additional condition for enrolment of a person who is otherwise eligible to be enrolled as an advocate under Section 24(1). Once that conclusion is reached, the very foundation for supporting the impugned rules gets knocked off. Consequently, if any such rule is framed, supposedly by exercise of the rule making power as enumerated in Section 49(1)(af), (ag) or (ah) on which also reliance was placed by Shri Rao, the said rule having not been made for discharging any of the statutory functions of the Bar Council of India in this connection must necessarily fail as it would be ultra vires the statutory functions of the Bar Council of India. Any rule framed by rule making authority going beyond its statutory functions must necessarily be held to be ultra vires and inoperative at law. Consequently, the valiant attempt made by Shri Rao for sustaining the Rules under Section 49(1)(af), (ag) and (ah) would remain abortive only on this short ground. (Para 20)
       Section 49(1)(af) deals with minimum qualifications required for admission to a course of degree in law in any recognised University. That obviously has nothing to do with the impugned rules. Then comes clause (ag) which deals with the class or category of persons entitled to be enrolled as advocates. To recapitulate, Section 49(1)(ag) was already on the statute book since 1964 till January 1974 when the topic of pre-enrolment training and examination was solely within the domain of the State Bar Councils and once on the said topic the State Bar Council concerned had framed the requisite rules, they were then subject to approval by the Bar Council of India. Therefore, there was a complete code in this connection. Once the State Bar Councils framed such rules and got them approved by the Bar Council of India, then because of the thrust of the parent provision of Section 24(1)(d) which was operative at that time, it became a pre-condition for enrolment. There cannot be two parellel pre-conditions of enrolment which came be simultaneously imposed, one under Section 24(1)(d) by the concerned State Bar Council by exercise of its powers under Section 28(2)(b) which existed on the Statute Book between 1964 to January, 1974 and also the possible provisions for imposing such pre-conditions for enrolment by the Bar Council of India taking resort to the supposed wide wordings of Section 49(1)(ag) during the very same period as during that period Section 24(1)(d), Section 28(2)(b) and Section 49(1)(ag) conjointly existed on the statute book. If such a concurrent power is envisaged by Section 49(1)(ag), then the Bar Council of India instead of being an approving authority at the relevant time would itself become a prescribing authority in connection with pre-enrolment training. It has also to be kept in view that on the scheme of the Act enrolment of advocates is the task of the State Bar Councils and not of the Bar Council of India. It must, therefore, be held that the rule making power contemplated by the legislature under Section 49(1)(ag) for being exercised by the Bar Council of India was pertaining to only those classes or categories of persons who were thought fit to be enrolled as advocates though they might not be eligible to be enrolled under Section 24(1) of the Act as it stood on the statute book. In other words, this enabling rule making power only by which the Bar Council of India could add to the category of eligible persons for enrolment which would have otherwise remained outside the sweep of the statutory scheme of eligibility for enrolment as laid down by Section 24(1), did not contemplate any power to curtail the existing eligibility of applicants under Section 24(1) for enrolment as advocates. It is only for such additional class or category of persons that the enabling provision as per the said rule making power could be available to the Bar Council of India. It is difficult to appreciate how by any process of interpretation an enabling provision can be treated as a restrictive one. In fact, on a conjoint reading of Section 24(3)(d) and Section 49(1)(ag) the conclusion becomes inevitable that the Bar Council of India in exercise of its statutory function entrusted to it under sub-section (3)(d) of Section 24(1) can frame suitable rule for bringing in the umbrella of enrolment provision those who otherwise would have remained outside. The rule making power under Section 49(1) (ag) has to take colour from the statutory function entrusted to the Bar Council of India by Section 24(3)(d). As we have already held that Section 24(3)(d) does not enable the Bar Council of India to impose additional restriction on the eligibility of an applicant who seeks enrolment as per Section 24(1) by necessary implication power under Section 49(1) (ag) also cannot enable such an impermissible exercise. The rule making power under Section 49(1)(ag) is ancillary to the statutory function entrusted to the Bar Council of India by Section 24(3)(d) and it cannot travel beyond the said statutory sphere. So far as Section 49(1)(ag) is concerned, it has also to be kept in view, as noted earlier that Section 24(3)(d) and Section 49(1)(ag) were simultaneously introduced in the Act in 1964. At that time there were specific provisions regarding pre-enrolment training under Section 24(1)(d) and Section 28(2)(b). Thus, the enactment of Section 24(3)(d) and Section 49(1)(ag) could never have been intended to include implied power/ function to make pre-enrolment training Rules and that too by the Bar Council of India which had nothing to do at the initial stage of enrolment of advocates on the State rolls. (Paras 21 to 24)
       A mere look at the provisions of Section 49(1)(ah) shows that it confers rule making power on the Bar Council of India to prescribe conditions subject to which an advocate shall have the right to practise and the circumstances under which a person shall be deemed to practise as an advocate in a Court. It is, therefore, obvious that once a person has been enrolled as an advocate under the Act, his right to practise can be made subject to certain conditions if the Bar Council of India seeks to impose such conditions on an enrolled advocate. In other words, rule making power under Section 49(1)(ah) deals with a situation which is post enrolment of an advocate and does not deal with pre-enrolment situation for a candidate seeking enrolment. The impugned rules provide for pre-enrolment training. It is true that the Rules also provide for provisional enrolment. But provisional enrolment envisaged by the rules is totally dehors the scheme of the Act. To recall enrolment of advocates is a function entrusted by the legislature to the State Bar Councils and not to the Bar Council of India. Section 17 read with Section 24, leaves no room for doubt that a person who seeks enrolment as an advocate has to show his eligibility to be brought on State roll of advocates. A State roll of advocates has to be maintained only by the State Bar Council. Consequently, there would remain no occasion for the Bar Council of India to provide for a condition of pre-enrolment training. The State Bar Councils alone could provide for pre-enrolment training till Section 24(1)(d) was on the statute book up to January, 1974. After an advocate is enrolled as a full-fledged advocate how his right to practise is to be conditioned may be made a subject matter of rule making power of the Bar Council of India as per Section 49(1)(ah). But in the facts of the present case, the aforesaid provision cannot be of any help to the respondent Bar Council of India for sustaining the impugned rules for two obvious reasons; firstly, provision for pre-enrolment training of prospective advocates is not entrusted by the legislature to the Bar Council of India while laying down its statutory functions under Section 7, as seen earlier. Therefore, the very first part of Section 49 will hit the said rule as it would not be a rule for discharging, the statutory function of the Bar Council of India. But there is still a second cogent reason for showing that clause (ah) of sub-section (1) of Section 49 cannot support the impugned rules. The said rules do not seek to regulate the right of practice available to an already enrolled full-fledged advocate. The entitlement of an enrolled advocate is to be culled out from a conjoint reading of Sections 17, 24(1) and the definition of advocate as found in Section 2(1)(a). Once a person is enrolled as an advocate, how the right to practise of such enrolled advocate be regulated or monitored may legitimately form the subject matter of a rule framed under Section 49(1)(ah). But the impugned rules by providing the concept of a trainee advocate with only a limited right to ask for adjournment and mentioning the cases of his guide totally violate the scheme of the Act. Section 17 sub-section (2) of the Act lays down that there can be only two classes of advocates; senior advocates and non-senior or ordinary advocates. It is difficult to appreciate how a trainee advocate’s class can be created by exercising supposed rule making power of the Bar Council of India under Section 49(1)(ah). It is also interesting to note that the Bar Council of India itself in exercise of its rule making power under Section 49(1)(ah) has framed the Rules laying down conditions under which an enrolled advocate may not be permitted to practise as may be suspended from practice or when can he resume practice. (Para 26)
       It was contended that the impugned Rules 15A of 15C atleast can be sustained under the rule making power of the Bar Council of India under Section 49(1)(ah) of the Act. It is not possible to agree with this contention for the simple reason that by the impugned rules no training is prescribed subsequent to enrolment under the Act. Rules seek to impose pre-enrolment training, as noted earlier. Consequently, such a rule cannot be sustained. Even that apart, a close look at Section 49(1)(ah) clearly shows that the said provision enables the Bar Council of India to lay down conditions subject to which an advocate who has already got enrolled can have a right to practise. Right to practise as available to an advocate duly enrolled under the Act is a full-fledged right to practise which, as noted earlier, would include not only seeking adjournments but also to plead and argue for the client for whom he appears before the Court. Thus, any truncating of the very right to practise itself in exercise of rule making power under Section 49(1)(ah) by creating a new class of trainee advocates cannot be sustained by the said provision. All that the said provision enables the Bar Council of India to do is to frame a rule under the said provision which may impose conditions subject to which an enrolled advocate can carry on his full-fledged practice as an advocate. (Para 27)
       Rules framed by BCI u/s. 49(1)(ah) show that subject to the conditions laid down in these rules an enrolled advocate can practise as a full-fledged advocate. His right once granted cannot be restricted qua his acting in the Court when remaining enrolled as an advocate on the State roll. It must, therefore, be held that Section 49(1)(ah) cannot sustain the impugned rules. (Para 28)
       Once an advocate is already enrolled on the State roll conditions subject to which he can practise before the High Court or Court subordinate to it, can be laid down by the High Court by its rule making power under Section 34(1). This necessarily is a situation which is post enrolment. Similar situation would fall for consideration if the Bar Council of India seeks to exercise its power under pari materia rule making power under Section 49(1)(ah) but as the impugned rules graved backwards and seek to ener upon and monitor pre-enrolment situation, the said exercise obviously remains in a forbidden field for the Bar Council of India. It has also to be appreciated that the powers of the constitutional Courts like the High Courts which are Courts of record stand on an entirely different footing as compared to powers of statutory authority like the Bar Council of India which has to justify exercise of its powers within the four corners of the Statute which has created it. It is also not the submission of any learned counsel before us that any of the High Courts has framed any rule requiring the State Bar Councils not to enrol any advocate on its roll if he has not undertaken any pre-enrolment training by resorting to its rule making power under Section 34(1). It is only the Bar Council of India which has tried to do so by enacting the impugned rules. Consequently, any assistance sought to be received by Shri Rao for the Bar Council of India from Section 34(1) on the analogy of the High Court’s rule making power also cannot be any avail to him. These were the only contentions canvassed by learned senior counsel Shri Rao for the respondent Bar Council of India for sustaining the impugned rules and as we have found that none of these contentions can be sustained, the inevitable result is that the impugned rules fail and must be held to be still born being beyond the rule making power of the Bar Council of India. (Para 29)
       It is clarified that the judgment will have no retrospective effect in the sense that it will not apply to those applicants for enrolment who have earlier applied for enrolment and have successfully completed their pre-enrolment training as per the impugned rules. However, all those who apply for enrolment after this judgment will not have to undergo pre-enrolment training. This will be irrespective of the fact whether they had earlier applied for enrolment and have not completed their pre-enrolment training under the impugned rules till the date of this judgment or whether they had not earlier applied for enrolment despite getting their law degrees prior to the date of this judgment. (Para 40)
       (ii) Advocates Act, 1961-Section 24(1)-Bar Council of India Training Rules, 1995-Qualification to be admitted as an Advocate on State roll-Scope of powers of Bar Council of India (BCI)-Granting of admission to a person for being enrolled as an advocate is statutory function of State Bar Council only-BCI has no role to play-BCI has to approve rules framed by State Bar Council-BCI has no concurrent power to frame rules u/s 24(1)-BCI cannot exercise rule making power u/s 24(1) for imposing additional condition of qualification-BCI Training Rules 1995 prescribing pre-enrolment training is ultra vires.
       (iii) Advocates Act, 1961-Section 49(1)(ag) and (ah)-Bar Council of India Training Rules, 1995-General power of Bar Council of India to make rules-Scope of powers-Rule making power u/s 49(1) (ag) enables BCI to add eligible category for enrolment but not to curtail existing eligibility u/s 24(1) -Rule making power u/s 49(1)(ah) does not deal with pre-enrolment situation-Powers u/s 149(1)(ag) and (ah) do not enable BCI to frame rules for pre-enrolment training and examination-BCI Training Rules, 1995 ultra vires rule making power of BCI.
       (iv) Advocates Act, 1961-Section 7(1)(h)-Bar Council of India Training Rules, 1995-Functions of Bar Council of India-Scope of-Functions of BCI u/s 7 not enlarged to cover provision for pre-enrolment training-All that BCI can do is to suggest ways and means to promote legal education imparted by universities and lay down standard of education and syllabus in consultation with Universities-BCI cannot itself take up the roll of laying down pre-enrolment training for applicant seeking to enter legal profession by getting enrolled u/s 24-BCI Training Rules, 1995 ultra vires rule making power of BCI.
       Held : the concept of ‘legal education’ is not necessarily confined to only class room lecutres or theoretical study of law. It can include practical training of prospective advocates. But even accepting that legal connotation of the term ‘legal education’, the question remains as to how the Bar Council of India can promote legal education. It can obviously promote legal education by laying down standards of such education in consultation with the respective universities in India imparting such education. The words ‘Universities in India imparting such education’ as found in clause (h) of sub-section (1) leave no room for doubt that the question of imparting legal education is entrusted to the Universities in India and not to the Bar Council of India. All that the Bar Council of India can do is to suggest ways and means to promote such legal education to be imparted by the Universities and for that purpose it may lay down the standards of education, syllabi in consultation with the Universities in India. It is, therefore, difficult to appreciate how for promoting legal education through the Universities imparting legal education in India, the Bar Council of India can itself take up the role of laying down pre-enrolment training for applicants seeking to enter legal profession by getting enrolled under Section 24 of the Act. The history of this relevant provision spread over years, shows that pre-enrolment training and examination constitute a topic which the legislature in its wisdom entrusted to the State Bar Councils and not to the Bar Council of India. Merely because the legislature withdrew even that rule making power in the light of the withdrawal of the statutory condition of enrolment by enacting Section 24(1)(d) from the 31st January, 1974, it could not be said that the then existing rule making power on other topics which was available to the Bar Council of India got enlarged or elongated by necessary implication. The power, as couched in the same earlier existing terms, has remained as it is after deletion of Section 24(1)(d) by the Parliament. It is also to be noted that the functions of the Bar Council of India under Section 7 were not enlarged to cover such a provision for pre-enrolment training to applicants by suitably entrusting the Bar Council of India such a function. Save and except Section 7(1)(h) there is no sub-section in the said Section which entitles the Bar Council of India to prescribe any pre-enrolment training or examination to be undertaken by the prospective professional who wants to enrol himself as such once he satisfies the requirements and the conditions for such enrolment as laid down by Section 24(1). (Para 19)
       (v) Advocates Act, 1961-Sections 7 and 24-Qualification for being enrolled as an Advocate - Pre-enrolment training-Necessity of-Amendment of Advocates Act strongly recommended.
       Held : Before parting with these matters, it is necessary to note that in the light of the experience of various Courts in which advocates are practising since the time the Advocates Act has come into force, the Law Commission of India and other expert bodies that were entrusted with the task of suggesting improvements in the standards of legal education and legal practitioners felt it necessary to provide for compulsory training to young advocates entering the portals of the Court rooms. Training under senior advocates with a view to equip them with court craft and to make them future efficient officers of the court became a felt need and there cannot be any dispute on this aspect. In fact, the question of making some suggestions regarding admission to law Colleges, syllabus, training, period of practice at different levels of courts etc., was taken up as Item No. 16 in the last Conference of the Chief Justices held in December, 1993. The Conference resolved that Hon’ble the Chief Justice of India be requested to constitute a Committee consisting of Hon’ble Mr. Justice A.M. Ahmadi as its Chairman, and two other members to be nominated by Hon’ble the Chief Justice of India to suggest appropriate steps to be taken in the matter so that the law graduates may acquire sufficient experience before they become entitled to practise in the courts. The said High Power Committee, after inviting the views of the Chief Justices and State Bar Councils as well as the Bar Council of India made valuable suggestions.(Para 31)
       Observations of the High Power Committee clearly indicate that it was the stand of the representative of the Bar Council of India before them that Section 28(2)(b) which was earlier on the statute book and was deleted by the Parliament, was required to be reintroduced. In other words, it was felt by the Bar Council of India itself before the High Power Committee that for providing pre-enrolment training to prospective advocates a relevant amendments to the Act were required to be effected. It is easy to visualise that appropriate amendments in Sections 7 and 24(1) would have clothed the Bar Council of India with appropriate power of prescribing such pre-enrolment training for prospective entrants at the Bar. That would have provided appropriate statutory peg on which the appropriate rule could have been framed and hanged. It is also necessary to note in this connection that merely leaving the question of providing pre-enrolment training and examination to only the State Bar Councils may create difficulties in the working of the All India Statute. It goes without saying that as an enrolled advocate is entitled to practise in any court in India, common standard of professional expertise and efficient uniform legal training would be a must for all advocates enrolled under the Act. In these circumstances, appropriate statutory power has to be entrusted to the Bar Council of India so that it can monitor the enrolment exercise undertaken by the State Bar Council concerned in a uniform manner. It is possible to visualise that if power to prescribe pre-enrolment training and examination is conferred only on the State Bar Councils, then it may happen that one State Bar Council may impose such pre-enrolment training while another Bar Council may not and then it would be easy for the prospective professional who has got requisite law degree to get enrolment as the advocate from the State Bar Council which has not imposed such pre-enrolment training and having got the enrolment he may start practice in any other Court in India being legally entitled to practise as per the Act. To avoid such an incongruous situation which may result in legal evasion of the laudable concept of pre-enrolment training, it is absolutely necessary to entrust the Bar Council of India with appropriate statutory power to enable it to prescribe and provide for all India basis pre-enrolment training of advocates as well as requisite apprenticeship to make them efficient and well informed officers of the Court so as to achieve better administration of justice. We, therefore, strongly recommend appropriate amendments to be made in the Act in this connection. We may also mention that till the Parliament steps in to make suitable statutory amendments in the Act for providing pre-enrolment training to prospective advocates seeking enrolment under the Act, the Bar Council of India by way of an interim measure can also consider the feasibility of making suitable rules providing for in-practice training to be made available to enrolled advocates. Such an exercise may then not fall foul on the touchstone of Section 49(1)(ah). The impugned rules can be suitably re-enacted by deleting the condition of pre-enrolment training to advocates and instead of treating them to be a hybrid class of trainee advocates with limited right of audience in courts, may provide in-practice training to already enrolled advocates atleast for the first year of their practice as professionals. Such rules can also provide for appropriate stipend to be paid to them by their guides, if during that period such enrolled junior advocates are shown to have no independent source of income. Then in the light of Section 17(2) of the Act such newly enrolled advocates who are required to undergo in practice training for first one year of their entry in the profession can legitimately fall in the category of ‘other advocates’ apart from senior advocates as contemplated by that provision. (Paras 31 & 32)
       (vi) Advocates Act, 1961-Section 2(a) read with Sections 17(2) and 24(1) and 30-Bar Council of India Training Rules, 1995-Trainee advocate-BCI Training Rules envisaging Trainee advocates -Not valid. (Para 25)

Judgment

S.B. Majmudar, J.-Leave granted in the Special Leave Petitions.

2. These Writ Petitions under Article 32 of the Constitution of India as well as the two special leave petitions being S.L.P. (C) Nos. 13755 of 1996 and 12989 of 1998 moved by the Bar Council of Maharashtra and Goa and the Bar Council of India respectively raise a common question for our consideration, namely, whether the Bar Council of India Training Rules, 1995 (for short ‘the Rules’) as amended by the Resolution of the Bar Council of India in its meeting dated 19th July, 1998 relating to training to entrants of legal profession are within the competence of the Bar Council of India or are ultra vires its rule making powers under the Advocates Act, 1961 (for short ‘the Act’) and in the alternative whether these Rules are unreasonable and arbitrary and hence violative of Article 14 of the Constitution of India.

3. The writ petitioners, who have successfully completed their legal education by getting requisite Law degrees from the Universities concerned have contended before us in these writ petitions that their right to practise Law as made available under the relavant provisions of the Act is being arbitrarily denied by the impugned rules framed by the Bar Council of India and, therefore, their fundamental right under Article 19(1)(g) of the Constitution of India is being violated. That the said Rules do not impose any reasonable restrictions on the exercise of their fundamental right. It is also contended that in any case, the Rules are so framed as to be totally unworkable and are highly unreasonable and discriminatory in character and hence they offend Article 14 of the Constitution of India also. The civil appeal arising out of the SLP by the Bar Council of Maharashtra and Goa brings in challenge the decision of the Bombay High Court which upheld the impugned rules and dismissed the writ petition filed by it and that is how the State Bar Council is before us. Its contention is on the same lines as canvassed by learned counsel appearing for the writ petitioners. While civil appeal arising out of SLP (C) No. 12989 of 1998 filed by the Bar Council of India, on the other hand, brings in challenge the Judgment and Order rendered by the learned Single Judge of Punjab & Haryana High Court, who took the view in favour of the original writ petitioner-Respondent herein, that the impugned rules would not apply to the writ petitioner who had obtained his Law degree in 1981 as the Rules were purely prospective in character. It is, therefore, obvious that all these matters raise a common question regarding legality and validity of the impugned rules. If the Rules are upheld, then only further question whether they are prospective in nature or not would survive. This Court has treated the Writ Petition (Civil) No. 398 of 1996 as the leading petition and, therefore, we shall also refer to the pleadings of the parties and the relevant documents filed therein in the latter part of this judgment. By order dated 16th September, 1997, a three Judge Bench of this Court, presided over by S.C. Agrawal, J., appointed Shri Joseph Vellapally, learned senior advocate as amicus curiae to assist the Court on behalf of the petitioner. All other petitioners in person were permitted to submit their written submissions and the oral arguments were permitted to be submitted on behalf of all of them by learned amicus curiae senior advocate. We have to place on record our high sense of appreciation for the pains taken by amicus curiae Senior Advocate, Shri Joseph Vellapally, who has been good enough to look into all the relevant aspects of the matter and has placed his oral and written submissions in this connection. By order dated 21st February, 1997, another two Judge Bench of this Court, while treating writ petition (Civil) No. 398 of 1996 as a leading petition, directed that other petitions that are pending in the High Court or which may be filed thereafter shall remain stayed t

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1999 Supreme(SC) 313

Cases Referred (2)