Allow Cookies!
By using our website, you agree to the use of cookies
The Gujarat High Court has dismissed a writ petition which challenged the right of the Bar Council of India and Bar Council of Gujarat to levy as well as increase the fee for enrollment of advocates and issuance of Certificate of Practice as stipulated under the Advocates Act, 1961 and Bar Council of India Rules,1975.
While the power of the Bar Council of India to levy the enrollment fees has been prevented from being whittled, the High Court of Gujarat refrained from going into the question of whether the All India Bar Examination could be conducted as the matter is stated to be before the Supreme Court of India.
Statutory Provisions
Part VI of the Bar Council of India Rules governs the functioning of advocates; Chapter-III in particular governs the conditions for Right to Practice and these Rules are made in pursuance of Section 49(1)(ah) of the Advocates Act.
Section 24 of the Act enumerates the conditions which allows a person to be admitted as advocate i=on a state roll and section 30 of the act stipulates that every advocate whose name is entered in the state roll is entitled to practice throughout the territories to which the act extends.
Rule 9 states that no advocate shall be entitled to practice without having successfully passed the AIBE and that it should be mandatory for all students graduating from academic year 2009-2010 onwards. While rule 10 lays down the details regarding the implementation of the AIBE, Rule 11 discusses the certificate of practice which is to be issued to successful advocate on passing of the AIBE.
The original relief claimed by the petitioner was for the issuance of writ of mandamus to respondent bar council of Gujarat to process the application of the petitioner for registration and enrollment with enrollment fee of Rs. 750 only and the second relief was for a writ to be issued to Bar Council of India and Bar Council of Gujarat to issue Certificate of Right To Practice under Section 30 of the Advocates Act,1961 without any delay post enrollment.
The petitioner, whose application for enrollment has not been processed by bar council of Gujarat due to non-deposition of fee, has averred that the legality and validity of the Rules 9 to 11 must be challenged as BCI and BCG cannot make rules exceeding the eligibility criteria enumerated in the Act.
The bench held that the Gujarat High Court comprising Chief Justice Vikram Nath and Justice Ashutosh J Shastri, has dismissed the petition and recorded scathing remarks regarding the inexperience of the advocates who has filed the petition.
The act of 1961 provides entitlement to levy enrollment fees for enrollment as an advocate. Prescribing the right to levy fees be considered to be fundamental and it cannot be whittled by any rule. Prescribing the rate of fees is merely ancillary and can be modified by the Rules as apparent from Section 49 of the Act 1961. The harmonious construction between the Act and the Rules which govern the field of operation of both the provisions is that the rate as mentioned in Section 24 is to be treated as bare minimum fees which is always amenable for further increase. Since the petitioner has not challenged the validity of either the provisions of Section 24 or 49 of the Act of 1961 or Rules framed thereunder, both the provisions shall prevail.
86540
103860
630
114
59824