Gaurav Kumar v. Union of India

Writ Petition (C) No. 352 of 2023

Facts:

The petitioner, Gaurav Kumar, a law graduate who saw these additional enrolment fees are in excess of the amount stipulated under Section 24(1) (f) of the Advocates Act, 1961. The State bar Council of were charging fees ranging from Rs.15, 000- Rs.42, 000 the bar council of Odisha¹ is charging rupees forty two thousand one hundred from advocates at the time of enrolment, in the fact that Section24 (1) (f) only mandates the SBCs to charge Rupees seven hundred fifty in total at the time of enrolment. The petitioner claimed that fees charged as a financial barrier for the weaker section of society. This led him to file a petition under Article 32 of the Constitution, challenging the validity of the enrolment fees charged by State Bar Councils. This petition was filed against the Union Government, Bar Council of India, and State Bar Councils. This paved the way for a comprehensive review of the enrolment fee system.

In the case of Gaurav Kumar, the Supreme Court issued a notice on April 10, 2023, observing that kumar has raised a significant issue about the enrolment fees charged by State Bar Councils (SBCs). The court then transferred similar petitions from the High Court of Kerala, Madras at Madurai, and Bombay to itself, paving the way for a comprehensive review of the enrolment fee system.

Bench: of the Chief Justice of India Dhananjaya Y.Chandrachud, Justice JB Jariwala and Justice Manoj Misra addressed a critical issue of exorbitant enrolment fees charged by the State Bar Council for law graduates² seeking the admission to the State Bar Council roll which is a mandatory condition to practice in any court of India.

Issues Raised³:

1. Are State bar Councils (SBCs) overstepping their authority by charging enrolment fees that exceed the limit set by Section 24(1) (f) of the Advocates Act, thereby creating a barrier to entry for aspiring lawyers?

2. Whether the payment of additional miscellaneous fees can be made a pre-condition for enrolment or does it unfairly restrict access to the legal profession for certain individuals or groups?

Contention⁴:

By the petitioner’s side (Gaurav Kumar):

Exorbitant Enrolment Fees

Gaurav argued that State Bar Councils (SBCs) are charging exorbitant enrolment fees, often under different heads, in contravention of Section 24(1)(f) of the Advocates Act.

Rule-Making Power Limitation

He contended that once a specific provision prescribes the enrolment fee, the SBCs or the Bar Council of India (BCI) cannot charge fees beyond the substantive provision through their delegated rule-making power.

Misconstruction of Section 24

Gaurav contested that the term “subject to the provisions of this Act” at the beginning of Section 24 has been misconstrued for permitting them to charge beyond the authority. But it should only subject to decide the eligibility of the law graduates to admit them as advocates on the state rolls.

He pointed out that Section 6(3) of the Advocates Act prescribes how the SBCs may constitute “funds” to fulfill their functions, and needs, not to charge additional amounts under different heads along with the enrolment fees.

Constitutional Violation of the Article14 and 19(1) (g)

Gaurav contended that the exorbitant enrolment fees prevent law graduates belonging to economically weaker sections of society from getting admitted to the rolls of the SBCs, violating Article 19(1) (g) and Article 14 of the Constitution.

He highlighted that the Advocates’ Welfare Fund Act 2001 these funds are for the advocate welfare, which levying excessive enrolment fees which is not mandatory.

By the Respondent’s side⁵ (Mr Manan Kumar Mishra on behalf of the BCI):

Mishra defended that SBCs does not have adequate funds to discharge their duties, they require funds for day-to-day functioning including administrative expenses, staff salaries, maintenance.Unlike the annual subscription fee on members, SBCs rely on the one-time enrolment fee. The Section 24(1) (f) the enrollment fee was fixed by legislature in 1993 has not been modified since. This fails to adapt the present necessities of the SBCs needs and functions also not adequate to meet current financial demands. The SBCs charged to meet quid pro quo for the rendered services which did not violate the section 24(1) (f).emphasized that the BCI has the power to frame rules to charge reasonable fees under Sections 49(1)(ah) and 49(h) the term ‘any matter’ also includes matters relating to the enrolment fees and has proposed draft Uniform Rules to ensure uniformity in enrolment fees charged by SBCs.

Rationale:

After hearing from both parties, it was complicated to draw the conclusion. In spite of that, Supreme Court admitted with the petitioner’s contentions about exorbitant fees and violation of Article14 & 19(1) (g) the substantive equality and right to practice any profession. This decision was influenced by past cases.

The court drew upon a wealth of legal precedents, citing numerous landmark cases to inform its decision. By referencing these prior judgments, the court added depth and nuance to its ruling.

Mohammad Yasin v. Town Area committee (1952)⁶

Focused on the laws of authority in imposing license fees.
Supreme Court held that these fees affected the business owners. And the committee cannot impose taxes or fees without legislative authority. The court ruled that the committee’s action was ultra vires it affected business owners by taking away their property and restriction their right to do business. And also the license fees violated the Article 19(1) (g) of the constitution. And didn’t fall under ‘reasonable restrictions’

Ravinder kumar Dhariwal v. Union of India (2023)⁷

The court that promoting equal outcomes through targeted measure, such as affirmative action is crucial step towards achieving the substantive equality. And also addressing the systemic inequalities that prevent marginalized groups from having equal opportunities.

The one of the core rationales, court observed that the exorbitant enrolment fees charged by SBCs led to the constitution violation of Article14 & 19(1) (g) to restore by restricting the statutory authority of the SBCs under different heads.
the rationale was centered around restricting the powers of the SBCs and ensuring that the enrolment fee are not reasonable, Court also observed that the additional fees charged by the SBCs were ultra vires the Advocate Act. So, the court ruled that the SBCs cannot charge more than the enrolment fee prescribed under section 24(1) (f) which is for Rs.750/-(General category: 600+150).for Rs 125/-(SC/ST category: 100+25)⁸. And also court said that there is no refund for the enrolment which happened before this judgment.
The court’s rationale aimed to address this disparity and ensure that the enrolment process must be fair, transparent, and uniform across all SBCS.

Defects of Law:

Exorbitant Enrolment Fees: The SBCs are charging exorbitant enrolment fees, often under different heads, in contravention of Section 24(1) (f) of the Advocates Act.

Lack of Transparency: The fees charged by SBCs at the time of enrollment include additional expenses incurred in the enrolment process, such as online data processing fees, identity card fees, and verification process fees, which are not transparent, which are illegal and not mentioned in the section24(1)(f) of the Advocates Act. Likely, creates uncertainty among law graduates.
Unreasonable Restriction on profession: Section 30 of the Advocates Act, says that every advocate whose name is entered in the state roll has the right to practice in all courts throughout the territory of India. Violating the Article 19(1) (g) which gives right to practice law is not just a statutory right but also a fundament right, also violating Article 19(6) which permits restrictions on this right only if they are reasonable and imposed by the law, as fees charged by the SBCs were deemed unreasonable and the SBCs were overstepping the authority granted by the Advocates Act, violating the right practice a profession.
Coercive Enrolment Process: violating Article 14 of the Constitution. The process of enrolment becomes coercive, improper, unjust, and unfair, which affects individuals from marginalized sections of the society, creating the structural discrimination, thereby becomes the burden on more on the individuals with fewer resources, impacts entry of the law graduates into this profession.
Lack of Uniformity: The disparities in fees structures across different SBCs, resulting in a situation where a law graduate has to pay cumulative fees ranging from Rupees fifteen thousand to Rupees forty-two thousand (depending upon the SBC) at the time of enrolment.

Inference:

The inference suggests the law needs to be more uniform in its rules. Before this ruling, many advocates were struggling under the weight of exorbitant enrolment fees imposed by different State Bar Councils (SBCs). These fees were not only a financial burden but also a violation of their rights under Article 14 and Article 19(1) (g) of the Constitution. The worst-hit were those from economically marginalized sections of society, who were already facing an uphill battle to make a name for them in the legal profession.

The Supreme Court’s judgment has brought some much-needed clarity to this situation. By striking down the excessive fees, the court has sent a strong message that the law will not tolerate such arbitrary and discriminatory practices. The judgment also highlights the need for fairness, consistency, and transparency in the admission process for advocates. Also the court has managed to strike a balance between the financial needs of regulatory bodies and the fundamental rights of individuals. By reining in exorbitant enrolment fees, the court has not only brought relief to aspiring lawyers but also set a vital precedent for other professional organizations to follow. It’s a significant step towards creating a more level playing field, where anyone can pursue their dreams without being held back by financial burdens.

This judgment is a testament to the power of the judiciary in upholding the rights of citizens and promoting social justice. It’s a reminder that the law is not just a set of rules, but a tool for creating a fairer and more equitable society. As we move forward, it’s essential that we continue to push for reforms that promote accessibility, affordability, and inclusivity in the legal profession. Only then can we ensure that the law truly serves the needs of all citizens, regardless of their background or financial means.

Reference:

Gatla Sindhu Sri
Pendekanti law college
Hyderabad.

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Gaurav Kumar v. Union of India

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