FACTS:
The fees charged by various State Bar Councils (SBCs) at the time of enrollment of persons as advocates on state rolls are not as per the prescribed enrollment fees to be collected by SBCs under Section 24(1)(f) of the Advocates Act,1961 which provides that a person to be admitted in the state roll shall pay enrollment fees and stamp duty, if any payable under the Indian Stamp Act,1899. Enrollment fees for any person is rupees 600(to SBCs) and rupees 150(to BCI) and for such persons belonging to Scheduled Castes or the Scheduled Tribes, the fees is rupees 100(to SBCs) and rupees 25(to BCI). Advocates Act provides for the constitution of Bar Councils and All India Bar, it entrusts these Bar Councils with powers and duties. SBCs are under the duty to admit persons as advocates on its roll and such preparation and maintenance of state rolls, and during the process they are seen collecting more fees than prescription by charging various “fees” and “charges” in the form of welfare funds, training funds, library funds etc., alongside enrollment fees at the time of enrollment. Hence this writ petition under Article 32 of the Indian Constitution was filed by Gaurav Kumar to challenge the validity of the increased enrollment fees charged by the SBCs. The Supreme Court then transferred to itself the similar cases filed before other High Courts, filed as Akshai M Sivan v. Bar Council of Kerala, Manimaran v. Bar Council of India, Amey Shejwal v. Bar Council of Maharashtra and Goa, to deal with the issue collectively.
BENCH:
Former Chief Justice of India Dhananjaya Y. Chandrachud, Justice J B Pardiwala, Justice Manoj Misra.
ISSUES RAISED:
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 precondition for enrolment.
SUBMISSIONS:
Petitioner:
Mr. Gaurav Kumar, submitted the following:
- Advocates Act, 1961 under Section 24(1)(f) has exclusively mentioned the limits of enrollment fees to be taken from the law graduates to enroll their names on the state roll. SBCs collecting enrollment fees beyond the prescribed limit is clear violation of the Statutory provision;
- The delegated power of SBCs and BCI should not be beyond the provision in parent law;
- The rule making power of SBCs under Section 49(1) and of BCI under Section 28(1) of the Advocates Act cannot be exercised in variance with Section 24(1)(f);
- The words “subject to the provisions of this Act, and rules made thereunder” in the beginning of Section 24 does not imply the permission to make rule against the prescribed limit of enrollment fees but rather focuses on deciding eligibility of law graduates to be admitted as advocates.
- The power to constitute funds by SBCs under Section 6(3) for carrying on their functions under Section 6(2) can not be construed to collect exorbitant fees under different heads during the enrollment process.
- This current way of SBCs collecting higher fees than prescribed under statute violates Article 14 and Article 19(1)(g) of the Indian Constitution as it is unjust for the economically weaker sections of the society, taking away their chances of getting enrolled.
- For the welfare of advocates, the parliament has enacted The Advocates Welfare Fund Act 2001. This allows for collection of funds for advocates welfare but this should not manifest in collecting exorbitant enrolments fees.
Respondent:
Mr Manan Kumar Mishra, senior counsel, on behalf of the BCI submitted the following:
- The functions of SBCs and BCI are given under Section 6 and Section 7 respectively which includes administrative expenses, staff salaries, infrastructure maintenance and technological advancements to name a few. The inadequacy in funds will hinder the proper functioning of these bar councils making it very critical to comply with their statutory obligations under the Act.
- The prescribed enrolment fees in Section 24(1)(g) was fixed in 1993 and it fails to keep up to today’s inflation and financial demands
- The fees charged during enrolment are not unnecessary as they are connected to the services rendered by respective SBCs.
- The power to levy charges for services by SBCs is exercised under Section 15 of the Act which confers power to make rules to carry out purposes of Chapter II and Section 6 of the Act.
- Any charge that is levied during the enrollment process does not make enrollment fees automatically. Provided that such other charges need to pass the test of quid pro quo in respect of services rendered and charges imposed.
- In exercise of power to frame rules of BCI, it has placed before this court the draft of Uniform Rules (For Enrolment and Other Fees To Be Charged By The State Bar Councils) 2023, which lays down a uniform fee to be charged by all SBCs at the time of enrolment. The BCI requests this court to bring this draft to be implemented until any legislative amendments are done.
RATIONALE:
Supreme court in this case held that SBCs act of levying exorbitant fees as enrollment fees beyond the provisions of law is illegal and levying such other charges under different nomenclatures other than enrollment fees as stipulated in Section 24(1)(g) should not be charged at the time of enrollment as it results in the delegated powers acting beyond the provisions in parent Act, and in this case the SBCs cannot act in violation of specific provision of Advocates Act using its rule making power under Section 15 as held in Bar Council of Delhi v. Surjeet Singh and also the rules enacted by SBCs should not give rise to new rights, obligations, or disabilities which are absent in parent legislation as held in Kunj Behari Lal Butail v. State of H P. Court held that charges other than the enrolment fee cannot be a valid pre-condition. It also serves as a bar to enroll for economically weaker sections of the society and stands violative of Article 14 and Article 19 of the Indian constitution. Supreme court relied upon judgement in Joseph Shine v. Union of India in upholding the importance of substantive equality and against manifestation of arbitrariness. It also focused on how exorbitant fees for enrolment is oppressive for the young law graduates joining the Bar as held in Bar Council Of India vs Bonnie Foi Law College. In Mohammad Yasin v. Town Area Committee, Jalalabad, it is pointed out that an illegal impost is not to considered as reasonable restriction under Article 19(6) for fundamental right of right to practice under Article 19(1)(g). The Bar Councils can charge for the services provided in an appropriate manner after the enrolment but shouldn’t collect additional fees at the time of enrolment. If an amount exceeding the statutorily prescribed enrolment fees is collected by any SBCS, then a person paying such exorbitant fees is entitled for a refund of excess amount paid to SBCs. This is applicable to all the cases after this judgement, as this judgement will have prospective effect.
DEFECTS OF LAW:
The judgement did not highlight the issue faced by SBCs and BCI in performing their statutory obligations put by the Act with such meager enrolment fees being collected by them as per the current financial circumstances and the effect of inflation on such enrolment fees as the current provision was last scrutinized in 1993 and it’s been more than three decades since such an amendment. The court lacked in directing the legislature to take quick action regarding this subject.
INFERENCE:
This judgement outlines the exercise and standing of delegated legislation against the parent legislation. The current issue can be challenged under failure to conform to the parent or enabling statute and for manifesting arbitrariness as done by SBCs with respect to enrollment fees and resolution passed by BCI regarding the same while the power to pass such a resolution lies with the legislature alone. It also puts forward the power to levy charges and affirms that any authority exercising fiscal power such as imposition of fees cannot be an implied power. This judgement also highlights the stance of equality treatment under Article 14 in a way that enrollment fees shall not be discriminative and unjust to the disadvantaged groups (in this case the economically weaker section) leaving them behind from chances of equal participation to realize their full potential. This judgement also throws light on how exorbitant fees levied without authority during the enrollment process is not protected as a reasonable restriction to right to practice under Article 19(1)(g). This judgement addresses the plight of law graduates to start a career and such exorbitant fees being a bar for justice.
-Meghana Patil
Karnataka State Law University’s Law School.