Case Analysis of

V. Sudheer v. Bar Council of India

[1999 (3) SCC 176].

By:-

RITWIK GUHA MUSTAFI

3rd-year BA.LL.B

SCHOOL OF LAW, CHRIST (DEEMED TO BE UNIVERSITY), BANGALORE

Mail id: [email protected]

November 25, 2020

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Abstract.
The issue of conducting the Bar examinations by the Bar Council of India and the State Bar
associations for the admission of the candidates into the legal profession has been much debated
upon. The following case was an attempt by the Supreme Court of India to address this issue.
The court observed the various nuances as well as the historical background and developments of
the Advocates Act of 1961 and the Bar Council of India Training Rules of 1995 for the purpose
of this case. The court held that the impugned 1995 rules were unconstitutional.

This case analysis provides a brief overview of the relevant facts, issues, and arguments of both
sides in this case. This analysis examines the judgment of the apex court and makes some
suggestions upon the same. This analysis finds the judgment of the court to be erroneous on
some points and proper on others and relevant observations have been given. Doctrinal
methodology of research has been used in this case since ample materials in the form of articles
and case notes were available.

Keywords: Bar, examinations, background, India, erroneous.

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Introduction.

This case comprised of writ petitions under article 32 of the Constitution of India and two
Special Leave Petitions (hereinafter SLPs) under article 136 of the Constitution. The SLPs were
moved by the Bar Council of Maharashtra and Goa and the Bar Council of India wherein a
common question was raised for consideration.1

The legality and competence of 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 for providing training to the fresh entrants of legal (specifically litigation) profession was
questioned.

The All India Bar Examinations (AIBE) has been a contentious issue, with multiple parties
filing petitions against it before various courts. 2

Facts of the case.

The writ petitioners had completed their legal education and had obtained the law degrees from
their Universities. They contended that their right to practise law is being arbitrarily denied by
the impugned rules framed by the Bar Council of India and their fundamental right under Article
19(1) (g) of the Constitution of India is being violated. 

The Bar Council of India Training Rules of 1995 provided, inter alia, that no person shall be
entitled to be enrolled as an advocate unless he is eligible to be enrolled as such under section 24
of the Advocates Act, 1961 and has undergone training as prescribed under these rules. The
successful completion of the training period required the candidate to regularly attend the
chamber or office of the guide, study case papers, correspondence, draft pleadings, attend courts,
and particularly study cases with a view to get acquainted with the practice in courts and
minimum attendance for 225 days in all in courts and chambers in a year.3

The civil appeal arising out of the Special Leave Petition of the Bar Council of Maharashtra and
Goa challenged the order of the High Court of Bombay wherein the court had upheld the legality
1
https://www.legalcrystal.com/cases/search/name:borwe
2
Utkarsh Srivastava, In Defence of the All India Bar Examination, THE WIRE (Nov. 21, 2020, 06:00 P.M.),
https://thewire.in/law/in-defence-of-the-all-india-bar-exam
3
The Bar Council of India Training Rules, 1995, https://indiankanoon.org/doc/128629281/

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and validity of the aforementioned rules and had dismissed the writ petitions. The civil appeal
arising out of the Special Leave Petition of the Bar Council of India challenged the decision of
the Punjab and Haryana High Court wherein it was stated that the rules of 1995 were purely
prospective in nature and thus, the court had denied the claim of the petitioner who had obtained
his law degree in 1981.

Issues involved in the case.

 Whether or not the impugned rules of the Bar Council of India are ultra vires the rule-
making power of the Bar Council of India as available to it under the provisions of the
act?
 Whether or not the impugned rules are arbitrary and unreasonable in nature so as to
violate the article 14 (Right to Equality) of the Constitution of India?
 Whether or not the respondent in Bar Council of India’s appeal, who has got his Law
degree prior to the coming into force of these Rules, can be required to comply with these
Rules if he applies for being enrolled as an advocate under the Act after the Rules came
into force?4

Legal aspects involved in the case.

 Article 14 of the Indian Constitution: This article is one of the Fundamental Rights
accorded to the Indian Citizens in Part III of the Constitution. This article basically states
that “The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India”. Equality before Law basically means
that all persons should be treated equally no matter whether they are poor or rich, male or
female, upper caste or lower caste. Equality before Law prohibits providing any special
privilege to any community or people.5
 Article 19 (1) (g) of the Indian Constitution: The right to do business is a fundamental
right given to the citizens of India under Article 19 (1) (g) of part III of the Constitution
of India. It refers to a general right to carry on any type of business, occupation or

4
https://www.scribd.com/document/5332579/advocates-act-1961-sections-324-3-d-29-2-b-49-1-ag-and-ah-bar-
council-of-india-trai
5
Aniket Tiwari, An overview of Right to Equality under Article 14 of the Constitution, IPLEADERS (Nov. 21, 2020,
06:40 P.M.), https://blog.ipleaders.in/article-14/

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 profession to satisfy their livelihood needs. It doesn’t include a right to carry on any
activity which is illegal of nature or hinders public interest.6
 Section 24 of the Advocates Act, 1961: This section specifies the qualifications of a
person entitled to be enrolled into the Bar. The qualifications are regarding the age (21
years), citizenship (Indian), and the attainment of a law degree after 12 th March, 1967.
The Advocates Act, 1961 empowers State Bar Councils to frame their own rules
regarding enrolment of advocates.7
 Bar Council of India Training Rules, 1995: These rules deal with the conditions and
training process to be undergone by a person before he can be enrolled as an advocate in
a State Bar Council.

Arguments by the petitioners.

The learned counsel for the petitioners submitted that there is no power with the Bar Council of
India to frame the impugned rules. It was also submitted that Section 7 of the Act lays down the
statutory functions of the Bar Council of India. The provisions thereof do not entitle the Bar
Council of India to frame such impugned rules prescribing a pre-condition before enrolment of
an applicant as an `advocate' under the Act by requiring him to undergo pre-enrolment training
and apprenticeship as laid down under the impugned rules. It was also submitted that Section 24
sub-section (3) (d) of the Act also was not available to the Bar Council of India to frame such
Rules. It was submitted that rule making power of the Bar Council of India as laid down by
Section 49 could not be pressed in service by it in support of the impugned rules. 8 In addition,
the impugned rules were contended to be obnoxious, arbitrary, unreasonable and unworkable, so
much so that they violate the fundamental right to equality under article 14 of the Constitution of
India. It was also added that the retrospective nature of the impugned rules was untenable. 9
Therefore, the petitioners contended that the impugned rules are ultra vires the powers of the Bar
Council of India and that they are unconstitutional and should be struck down.
6
Noopur Dalal, What can you do if your right to do business is curtailed by a government notification, IPLEADERS
(Nov. 21, 2020, 06:45 P.M.), https://blog.ipleaders.in/rights-business-curtailed/
7
Nandini Tarway, Salient Features of Advocates Act, 1961, SCRIBD (Nov. 26, 2020, 06:50 P.M.),
https://www.scribd.com/document/339925881/SALIENT-FEATURES-OF-ADVOCATES-ACT-1961
8
https://www.scribd.com/document/60613687/abhinav
9
V. Sudheer v. Bar Council of India, (1999) 3 SCC 176 (India).

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Arguments of the Respondents.

The respondents argued that the impugned rules are very much within the powers (intra vires) of
the Bar Council of India to regulate and enforce. In addition, it was argued that the impugned
rules were reasonable, justified and well within the purview of the constitutional rights
guaranteed to the citizens of India.

An overview and an analysis of the judgment.

The court observed that the advocates act seeks to amend and consolidate the law relating to
legal practitioners and to provide for the constitution of Bar Councils and an All-India Bar. The
court also observed the required conditions to be fulfilled for persons to be admitted as advocates
on a state roll. After examining the original section 24 (d) of the 1961 act and its subsequent
amendment in 1964, the court clarified that between 1961 and 1964, the State Bar Council, as a
condition of enrolment, required an applicant to undergo and complete a course of training in
Law. 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.10

The court stated that the Bar Council of India was given the powers to enable it to add to the
categories of eligible candidates those persons who were otherwise not eligible to be enrolled
under section 17 read with section 24(1) of the act and that 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.11

The 2-judge bench comprising of Hon’ble Justices S.B. Majumdar and S.N. Phukan of the apex
court additionally referred to the statement of objects and reasons of the Advocates
(Amendment) Bill, 1970 which had ultimately resulted in the termination of the Section 24 (1)
(d) of the 1961 Advocates Act. The reasoning for the same was highlighted in the third

10
https://www.scribd.com/document/5332579/advocates-act-1961-sections-324-3-d-29-2-b-49-1-ag-and-ah-bar-
council-of-india-trai
11
https://indiankanoon.org/doc/1029236/

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paragraph of the aforementioned statement of objects and reasons. The reason was that the Bar
Council of India had mandated that the legal profession can be entered into by someone only
after pursuing a Law degree for 3 years after graduation. This meant that age of entry in the legal
profession was higher than that of other professions and hence, a further examination or practical
training wasn’t required for the people joining the legal profession after pursuing the 3-year Law
degree after their graduation.

The court stated that the aforementioned facts implied that the Bar Council of India had itself
agreed upon the fact that a 3-year law degree would be enough for providing the proof for
qualification for enrolments as an advocate and that in the syllabus given by the Bar Council of
India to all the recognized colleges and universities around the country included practical
training as a part of the curriculum.

The court additionally observed that there is no legislature which disqualifies the entrants to from
entering into the legal profession in cases where that particular entrant has not undergone the
pre-enrollment training period. The court however agreed to the fact that the legal profession
requires well-trained professionals. Therefore, the court suggested that the entry exams for the 3-
year law course in the colleges should be tough and strict so as to gauge the potential merit of the
candidates, the Bar Council should introduce some procedural professional courses for the
graduates pursuing the law degree, there should be a minimum limit fixed for attendance in the
law colleges, and finally a strict and practical apprentice tests for the law graduates. The court
implored the Bar Council of India to examine, deliberate, and implement the aforementioned
suggestions.

In this case, the court struck down the impugned 1995 rules and allowed the writ petitions. In
order to avoid confusion, the court clarified that this judgment shall be applicable in a
prospective manner.

The court’s viewpoint about requirement of well-trained professionals in legal profession is

absolutely correct. The suggestions mentioned by the court are relevant and should be
implemented keeping in view the different circumstances and policies of each state and law
college. The court did err in striking down the rules in their entirety. Having a law degree and a
few professional law courses under one’s name doesn’t guarantee the existence of practical

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knowledge of the legal field. A training period is essential in the legal profession. The rules were
a bit ambiguous given the historical background, but the court could’ve ordered an amendment
of the language of the 1995 training rules.

Conclusion.

This case was an attempt made by the apex court to address the contentious issues of the All
India Bar Examinations for the enrollment of the advocates. It is concluded that the Bar Council
of India has the powers to regulate the rules related to the enrollment of advocates since it is the
apex body of lawyers in India. In addition, it is concluded that the training rules of 1995 weren’t
violating article 14 and 19(1) (g) of the Indian Constitution. A right to practice law isn’t an
absolute and unconditional right. Given the fact that in litigation, the quality of life of the clients
are at stake, a training period for the fresh entrants will only aid the entrants to hone their
technical and other relevant legal skills. It provides an impetus to the right to carry out a
profession of one’s choice since a proper training period enhances the quality of the work.
Giving entry to well-trained individuals comes under the ‘intelligible differentia’, one of the
exceptions under article 14 i.e. Right to Equality.

References.

1.) Utkarsh Srivastava, ‘In Defence of the All India Bar Examination’ (The Wire, 17 Mar
2016) < https://thewire.in/law/in-defence-of-the-all-india-bar-exam> accessed 21
November 2020.
2.) Aniket Tiwari, ‘An overview of Right to Equality under Article 14 of the Constitution’
(IPLEADERS, 6 Jan 2020) < https://blog.ipleaders.in/article-14/> accessed 21 November
2020.

3.) Noopur Dalal, ‘What can you do if your right to do business is curtailed by a government
notification’ (IPLEADERS, 15 Feb 2016) <https://blog.ipleaders.in/rights-business-
curtailed/> accessed 21 November 2020.
4.) Nandini Tarway, ‘Salient Features of Advocates Act, 1961’, (SCRIBD, 21 Feb 2017)
<https://www.scribd.com/document/339925881/SALIENT-FEATURES-OF-
ADVOCATES-ACT-1961> accessed 26 November, 2020

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 5.) V. Sudheer v. Bar Council of India, (1999) 3 SCC 176.

About the author.

Ritwik Guha Mustafi is a current 3 rd-year BA.LL.B student in the School of Law, Christ
(Deemed to be University), Bangalore. His areas of interest are IPR, ADR, Criminal Law, and
Constitutional Law. He was the content writer for 5 th Voice website and Legal Education Experts
website. He has interned in Jharkhand High Court, Ranchi Civil courts and mediation center, and
the Leo Cussen Center for Law, Australia.