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Madhya Pradesh HC ruled BCI empower to frame rules, conditions before permitting a person to practice as an Advocate
New Delhi, October 27, 2020: The Madhya Pradesh High Court observed that an advocate getting enrolled under Section 24 of the Advocates Act, 1961 can be subjected to further rules & conditions before he is permitted to practise as an advocate in court.
The Madhya Pradesh High Court Bench of Acting Chief Justice Sanjay Yadav and Justice Rajeev Kumar Dubey was hearing writ petitions, challenging Rule 9 of All India Bar Examination Rules, 2010 and praying that Rule 9 be declared ultra vires. Apart from challenging Rule 9 of All India Bar Examination Rules, 2010, they prayed before the Court that direction be issued to the Bar Council of India to declare the result of the centre of Jabalpur and Bhopal of the examination conducted on 15.09.2019.
The writ petitions were filed at the instance of Advocates provisionally enrolled with the Madhya Pradesh State Bar Council. Further, a direction was sought for the Madhya Pradesh State Bar Council to extend the period of provisional enrollment.
First of all, it may be noted that Rules 9 to 11 of All India Bar Examination Rules, 2010 were brought in vogue vide Resolution No.73/2010.
The rules were inserted in Part VI, Chapter III of the Bar Council of India Rules – Conditions for Right to Practise – under Section 49(1)(ah) of Act of 1961.
The Bar Council of India had resolved that being vested with the power of laying down rules & conditions subject to which advocates shall have the right to practise the profession of law under the Advocates Act, 1961 shall conduct an All India Bar Examination, the passing of which would entitle the advocate to a Certificate of Practice which would permit him/her to practice the profession of law under the Advocates Act, 1961.
Now, let's see what does Rule 9 of All India Bar Examination Rules, 2010 mandate:
"9. No Advocate enrolled under Section 24 of the Advocates Act, 1961 shall be entitled to practice under Chapter IV of the Advocates Act, 1961, unless such Advocate successfully passes the All India Bar Examination conducted by the Bar Council of India. It is clarified that the Bar Examination shall be mandatory for all Law students graduating from academic year 2009-2010 and onwards and enrolled as Advocates under Section 24 of the Advocates Act, 1961."
In short, this rule makes it mandatory for advocates enrolling themselves under Section 24 of the 1961 Act (from academic year 2009-2010) to pass AIBE conducted by BCI, and only after passing the said examination, they shall be entitled to practise in a court of Law.
Now, this Rule 9 was challenged in the writ petitions filed before the MP HC on the contentions that it is beyond the competency of the Bar Council of India to frame such Rule which tends to deprive advocates who are enrolled under Section 24 of the Act of 1961.
Importantly, it was urged that post enrolment eligibility criteria is dehors Sections 24 and 30 of Act of 1961.
The Court observed that Section 24 of the Advocates Act of 1961 makes provision regarding persons who may be admitted as advocates on a State roll.
However, the Court also noted that the right of the Bar Council created under Section 24 has been made subject to other provisions of the Act of 1961 (for example Section 49 of the Act).
The Court observed that - while on one hand, Section 30 of the Act of 1961 makes provision as to the right of advocates to practise, on the other hand, Section 49 confers on the Bar Council of India, the general power to make rules for discharging its functions under the Act of 1961.
Now, if we observe Section 49 of the 1961 Act, we can appreciate the fact that it makes a provision for the Bar Council of India to make rules for discharging its functions under this Act.
Further, Section 49(1) (ah) of Act of 1961 empowers the Bar Council of India to lay down the 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 may be noted that Section 49(1) (ah) of Act of 1961 says,"(ah) the 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".
Thus, it is clear that by virtue of the power vested in the Bar Council of India under Section 49(1) (ah) of Act of 1961, Rule 9 of All India Bar Examination Rules, 2010 came into being.
To clarify things further, the Court cited the observation made by the Apex Court in the case of V. Sudeer vs Bar Council of India, (1999) 3 SCC 176:
"A mere look at the said provision [Section 49(1)(ah)] shows that it confers rulemaking 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"
In this context, the Court noted that the Rule 9 of the All India Bar Examination Rules, 2010 has to be tested on the anvil of the above analysis, the same cannot be said to be ultra vires Sections 24 and 30 of the Advocates Act, 1961 as would warrant interference by the Court.
Consequently, challenge to the validity of Rule 9 was negatived.
Further, the Court observed that the examination at the centre of Jabalpur and Bhopal was cancelled because of the mass copying. In view whereof, no direction can be issued for declaration of result as the examination stand cancelled.
However, the Court gave petitioners the liberty to file an appropriate application before the Bar Council of India for conducting a fresh examination.
The Court concluded by saying,"It is for the Bar Council of India to take the call. Meanwhile, the petitioners are also at liberty to file a representation before Madhya Pradesh State Bar Council, seeking an extension of the provisional registration in these fact situation. We have no manner of doubt that the representation so filed, shall be dwelt upon objectively by the Bar Council of India and Madhya Pradesh State Bar Council."
News Courtesy:PIB | Hindu| DC | LE | LI | LO | IE | LL | PTI |ht | ET | UNI | DNA | FP | Jurist |IndToday|
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