Gaurav Kumar v. Union of India and Ors.

Gaurav Kumar v. Union of India and Ors.

69Copy pinpoint69. As discussed in the above segments of this judgment, the legislature prescribed the enrolment fee under Section 24(1)(f) to cover “all functions” carried out by the SBCs and the BCI under the Advocates Act. The legislative history suggests that the legislature was averse to imposing any charges other than enrolment fees at the time of enrolment. This was in furtherance of the legislative object to foster an inclusive Bar. However, the SBCs are imposing miscellaneous fees and charges in the guise of an enrolment fee, which cumulatively exceed the statutory stipulation under Section 24(1)(f). The decision of the SBCs to charge an enrolment fee beyond the stipulated amount is contrary to the legislative object of the Advocates Act.

70Copy pinpoint70. Section 24(1)(f) is a fiscal regulatory provision and has to be construed strictly. Parliament has prescribed the enrolment fees in the exercise of its sovereign legislative powers. The SBCs and the BCI, being delegates of Parliament, cannot alter or modify the fiscal policy laid down by Parliament. The delegate can create substantive rights and obligations only to the extent to which the parent enactment empowers the delegate.79 By prescribing additional fees at the time of enrolment, the SBCs have created new substantive obligations not contemplated by the provisions of the Advocates Act. The basis for the fees imposed by the SBCs has to be traceable to the provisions of the statute. There is no express provision in the Advocates Act empowering the SBCs to levy fees, except for the enrolment fee and stamp duty, if any, under Section 24(1)(f), at the time of admission of advocates on the State roll. The decision of the SBCs to charge miscellaneous fees is contrary to the legislative prescription of the Advocates Act.

71Copy pinpoint71. On 26 June 2013, the BCI passed a resolution directing the SBCs to charge Rupees six thousand as enrolment fees for general candidates and Rupees three thousand for SC and ST candidates. Importantly, the resolution stated that the SBCs could charge other fees according to “their own suitability.” On 22 December 2016, the BCI addressd a letter to all the SBCs directing them to charge the revised enrolment fees. The BCI resolution dated 26 June 2013 prompted many SBCs such as the Odisha Bar Council to enhance their enrolment fees. Section 24(1)(f) stipulates the enrolment fee

79 See Global Energy Ltd. v. Central Electricity Regulatory Commission (2009) 15 SCC 570 [25]

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to be charged by the SBCs. In the face of the express stipulation of law, the BCI had no authority to pass a resolution revising the enrolment fees charged by the SBCs. The fact that the enrolment fee stipulated under Section 24(1)(f) has not been revised by the legislature does not clothe the BCI with any authority to direct the SBCs to charge revised enrolment fees. Since the BCI exercises general supervision and control over all the SBCs, it is incumbent upon it to ensure that the SBCs strictly follow the mandate of the Advocates Act. The resolution dated 26 June 2013 is devoid of legal authority and contrary to Section 24(1)(f) of the Advocates Act. G. All fees charged at the time of enrolment are ‘enrolment fees’

72Copy pinpoint72. In this batch of matters, we have transferred to this Court similar petitions pending before the Kerala High Court. In T Koshy v. Bar Council of Kerala,80 the SBC was charging special fees for enrolment from candidates who had retired from government service. A Single Judge of the Kerala High Court observed that the special fees were charged in addition to the enrolment fees and other miscellaneous charges such as application form fee, registration fee, enrolment certificate fee, and verification fee. The vires of the miscellaneous fees was not challenged before the High Court. The High Court construed the special fee charged by the SBC as an enrolment fee and held that the amount charged by the SBC was over and above the enrolment fee stipulated by Section 24(1)(f). In appeal, the Division Bench of the High Court upheld the judgment of the Single Judge by holding that Section 28(2)(d) did not empower the SBC “to prescribe any fee for enrolment, either in the form of enrolment fee or special fee.”81 The Special Leave Petition filed by the SBC was dismissed by this Court on 4 June 2019.82

73Copy pinpoint73. In adjudicating upon WP (C) No. 3068 of 2023,83 another Single Judge of the Kerala High Court relied on T Koshy (supra) to observe that the SBC is only entitled to collect the enrolment fee stipulated under Section 24(1)(f) of the Advocates Act. Subsequently, the writ petition was heard by a Division Bench of the Kerala High Court which passed

80 2016 SCC OnLine Ker 41055 81 Bar Council of Kerala v. T Koshy, W A No. 2170 of 2017. 82 Bar Council of Kerala v. N S Gopakumar, SLP(C) No. 44268 of 2018. 83 Akshai M Sivan v. Bar Council of Kerala, WP(C) No. 3068 of 2023 (order dt. 12 June 2023)

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an interim order directing the SBC to admit the petitioners on the State roll by accepting Rupees seven hundred fifty as enrolment fees.

74Copy pinpoint74. Given the above background, two issues arise for consideration: (i) whether the miscellaneous fees which are charged in addition to the enrolment fee at the time of enrolment can be considered as enrolment fee; and (ii) whether the SBCs or the BCI can charge miscellaneous fees as a pre-condition for enrolment. i. Charges other than the enrolment fee cannot be a valid pre-condition

75Copy pinpoint75. Section 24(1) of the Advocates Act lays down the conditions subject to which an advocate may be admitted on a State roll. Section 24(1) (f) provides that the enrolment fee is paid by the advocate “in respect of the enrolment.” The use of the phrase “in respect of the enrolment” conveys that the fee is paid for the entire enrolment process. Under the Advocates Act, the process of enrolment commences when an applicant makes an application to the SBC within whose jurisdiction the applicant proposes to practice. Thereafter, the enrolment committee of the SBC scrutinizes the application on the basis of the eligibility qualifications laid down under Section 24(1). The name of an applicant who is found eligible is entered on the roll of advocates and a certificate of enrolment is issued to the applicant by the SBC. The enrolment fee prescribed under Section 24(1)(f) comprehends the whole enrolment process.

76Copy pinpoint76. On 27 December 2016,84 the BCI passed a resolution fixing the verification fees charged by the SBCs at the time of submission of enrolment forms. The resolution was in the following terms “The State Bar Councils/ Enrolment Committees of the State Bar Councils shall require the Xerox as well as the original certificates of the candidates applying for enrolment. Following certificates shall be required to be submitted alongwith the enrolment forms:- (a) Certificate of concerned Board for Secondary/10th examination.

84 Communication dated 28 January 2017 by the BCI to the secretaries of the SBCs, BCI:D 529/2017(Council) dated 28 January 2017.

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(b) Certificate of concerned Board for Senior Secondary or intermediate examination. (c) Certificate of graduation, if any or/and the LLB degree or the provisional certificates of these Degrees granted by the University as well as the mark-sheets of all the three or five year of LL.B. examinations. The office of State Bar Councils shall charge a sum of Rs. 2500/- for verification of the said certificates from the candidates at the time of submission of the enrolment forms only.”

77Copy pinpoint77. In view of the BCI resolution, many SBCs increased the verification fees charged by them. Currently, the SBCs charge various fees such as verification fees, application fees, registration fees, and identity card fees at the time of enrolment. The SBCs charge these fees as concomitant to the process of enrolment. For instance, a verification fee is charged for the verification of academic qualification certificates of the candidates. The verification fee is collected from the candidates “at the time of submission of enrolment forms.” These additional fees are in furtherance of the process of enrolment of advocates and are encompassed within the meaning of the phrase “in respect of the enrolment” appearing in Section 24(1)(f).

78Copy pinpoint78. Additionally, the SBCs also collect charges such as building fund and benevolent fund from advocates at the time of enrolment. These charges are per se not related to the process of enrolment, but in most cases the candidates have no choice but to pay the levies. The SBCs admit that they charge the fees at the time of enrolment as a one-time payment for all the services offered by them. The SBCs contend that they charge these fees at the time of enrolment because the advocates do not pay periodic fees after enrolment.

79Copy pinpoint79. Admission on the roll of advocates is a pre-requisite for any person intending to practice law in India. At the time of enrolment, candidates have little agency but to pay the miscellaneous fees imposed by the SBCs to get enrolled. Non-payment of the fees means that a candidate cannot get enrolled on the State roll. Thus, all the miscellaneous fees collected from a candidate at the time of enrolment essentially serve as a pre-condition to the process of enrolment. Section 24(1) specifically lays down the pre-conditions subject to which an advocate

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can be enrolled on State rolls. Since Section 24(1)(f) specifies the amount that can be charged by the SBCs as an enrolment fee, the SBCs and the BCI cannot demand payment of fees other than the stipulated enrolment fee as a pre-condition to enrolment.

80Copy pinpoint80. Rule 40 under Section IVA of Chapter II of Part VI under the BCI Rules mandates every advocate borne on the rolls to pay the SBC a sum of Rupees three hundred every third year.85 The sum under Rule 40 can only be collected from advocates already admitted on the State rolls. Therefore, this sum cannot be collected from persons at the time of enrolment. It must be collected from advocates after they are admitted on the State roll. ii. Article 14: substantive equality and manifest arbitrariness

81Copy pinpoint81. Article 14 has a substantive content that mirrors the quest for ensuring fair treatment of an individual in every aspect of human endeavour and existence.86 In Joseph Shine v. Union of India,87 one of us (D Y Chandrachud, J) observed that substantive equality is directed at eliminating individual, institutional, and systemic discrimination against disadvantaged groups which effectively undermines their full and equal participation in society at the social, economic, political, and cultural levels. It was further observed: “172. The primary enquiry to be undertaken by the Court towards the realisation of substantive equality is

85 Rule 40, Section IVA, Chapter II, Part VI, BCI Rules. [It reads: “40. Every Advocate borne on the rolls of the State Bar Council shall pay to the State Bar Council a sum of Rs. 300 every third year commencing from 1st August, 2001 along with a statement of particulars as given in the form set out at the end of these Rules, the first payment to be made on or before 1st August, 2001 or such extended time as notified by the Bar Council of India or the concerned State Bar Council. Provided further however that an advocate shall be at liberty to pay in lieu of the payment of Rs. 60043 every three years a consolidated amount of Rs. 1000. This will be a life time payment to be kept in the fixed deposit by the concerned State Bar Council. Out of life time payment, 80% of the amount will be retained by the State Bar Council in a fixed deposit and remaining 20% has to be transferred to the Bar Council of India. The Bar Council of India and State Bar Council have to keep the same in a fixed deposit and the interest on the said deposits shall alone be utilized for the Welfare of the Advocates”44. Explanation 1.—Statement of particulars as required by Rule 40 in the form set out shall require to be submitted only once in three years. Explanation 2.—The Advocates who are in actual practise and are not drawing salary or not in full time service and not drawing salary from their respective employers are only required to pay the amount referred to in this rule. Explanation 3.—This rule will be effective from 1-10-2006 and for period prior to this, advocates will continue to be covered by old rule.”] 86 Navtej Singh Johar v. Union of India (2018) 10 SCC 1 [409] 87 [2018] 11 SCR 765 : (2019) 3 SCC 39 [171]

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to determine whether the provision contributes to the subordination of a disadvantaged group of individuals. The disadvantage must be addressed not by treating a woman as “weak” but by construing her entitlement to an equal citizenship. The former legitimises patronising attitudes towards women. The latter links true equality to the realisation of dignity. The focus of such an approach is not simply on equal treatment under the law, but rather on the real impact of the legislation. Thus, Section 497 has to be examined in the light of existing social structures which enforce the position of a woman as an unequal participant in a marriage.”

82Copy pinpoint82. In Navtej Singh Johar v. Union of India,88 a Constitution Bench held that Section 377 undermined substantive equality because it created barriers, systemic and deliberate, for the effective participation of the members of the LGBTIQ+ community in the workforce.

83Copy pinpoint83. In Bonnie Foi Law College (supra), a Constitution Bench of this Court recognized the effect of the exorbitant enrolment fees charged by the SBCs: “54. We also have one caveat arising from the plea that different State Bar Councils are charging different fees for enrolment. This is something which needs the attention of the Bar Council of India, which is not devoid of the powers to see that a uniform pattern is observed and the fee does not become oppressive at the threshold of young students joining the Bar.”

84Copy pinpoint84. The burden of payment of enrolment fees and other miscellaneous fees imposed by the SBCs falls equally on all persons seeking enrolment. While the burden is facially neutral, it perpetuates structural discrimination against persons from marginalized and economically weaker sections of the society. In more than one way, the process of enrolment perpetuates a culture89 of systemic exclusion and discrimination that impacts the entry of law graduates into the legal profession and even beyond. A law graduate in India undergoes legal

88 [2018] 7 SCR 379 : (2018) 10 SCC 1 [453] 89 See Nitisha v. Union of India (2021) 15 SCC 125 [77]

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education which typically entails a study of a three-year LLB course or an integrated five-year course. The model of legal education in India is largely centred around a standardized admissions test. Candidates desirous of taking the admission test have to pay a hefty fee for taking the examination and in many cases engage tutors or coaching classes to prepare for these tests. Although the engagement of tutors or purchase of preparation material is a choice a candidate can choose not to make, it puts them against a cohort of competitors who have engaged such help. Once admitted to a recognized institute for legal education, a student has to afford the fees of the college either by paying on their own or by availing of a student loan. Students are also expected and sometimes mandated to partake in internships, research work, and co-curricular and extra- curricular activities among others.90 Partaking in these activities entails additional expenses.

85Copy pinpoint85. Young law graduates seeking to enter litigation start from a position of disadvantage. In S Seshachalam v. Bar Council of Tamil Nadu,91 Justice R Banumathi summed up the struggle of young advocates in apt words: “26. The profession of Law is a noble calling. The legal fraternity toils day and night to be successful in the profession. Although it is true that slowly working one’s way up is the norm in any profession, including Law, but initially young advocates have to remain in the queue for a prolonged period of time and struggle through greater hardships. Despite being extremely talented, a number of young lawyers hardly get proper opportunity or exposure in their profession. New entrants to the profession in the initial stages of the profession suffer with the meagre stipend which young lawyers may receive during their initial years, coupled with the absence of a legislation concerning this, they struggle to manage their food, lodging, transportation and other needs. Despite their valiant efforts, they

90 Rule 25, Part IV of the Rules of Legal Education 2008, BCI mandates law students to complete an internship under an advocate for a minimum of 12 weeks for the three year law course and twenty weeks for the five year law course. 91 [2014] 12 SCR 465 : (2014) 16 SCC 72

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are unable to march ahead in their profession. It is only after years of hardwork and slogging that some of the fortunate lawyers are able to make a name for themselves and achieve success in the profession. For the majority of the legal fraternity, everyday is a challenge. Despite the difficult times, the lawyer who sets up practice straight after enrolment, struggles to settle down … in the profession. Some of the lawyers remain struggling throughout their lives yet choose to remain in the profession. It is something like “riding a bicycle uphill with the wind against one”. (emphasis added)

86Copy pinpoint86. Young law graduates who start litigating right after graduation earn anywhere between Rupees ten thousand to Rupees fifty thousand per month, depending upon the location of their practice and the chambers they join. The structure of the Indian legal setup is such that the struggle for getting acceptance in chambers and law firms is greater for those who belong to the marginalized sections, first- generation advocates, or law graduates without a degree from a National Law University. A recent report suggests that many law students from the Dalit community face English language barriers, reducing their opportunities of practicing before the High Courts and the Supreme Court where the court proceedings are in English.92 In a legal system that is predisposed against the marginalized, the pre-condition of paying exorbitant fees in the name of enrolment fee creates a further barrier for many.

87Copy pinpoint87. In Neil Aurelio Nunes v. Union of India,93 a two-Judge Bench of this Court, explained the redundancy of the concept of merit and the struggles of a first-generation learner: “33. The crux of the above discussion is that the binary of merit and reservation has now become superfluous once this Court has recognised the principle of substantive equality as the mandate of Article 14 and as a facet of Articles 15(1) and 16(1). An open competitive exam may

92 Challenges for Dalits in South Asia’s Legal Community, Chapter III – Dalit Justice Defenders in India, American Bar Association (2021) 16 93 [2022] 11 SCR 585 : (2022) 4 SCC 1

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ensure formal equality where everyone has an equal opportunity to participate. However, widespread inequalities in the availability of and access to educational facilities will result in the deprivation of certain classes of people who would be unable to effectively compete in such a system. Special provisions (like reservation) enable such disadvantaged classes to overcome the barriers they face in effectively competing with forward classes and thus ensuring substantive equality. The privileges that accrue to forward classes are not limited to having access to quality schooling and access to tutorials and coaching centres to prepare for a competitive examination but also include their social networks and cultural capital (communication skills, accent, books or academic accomplishments) that they inherit from their family. The cultural capital ensures that a child is trained unconsciously by the familial environment to take up higher education or high posts commensurate with their family’s standing. This works to the disadvantage of individuals who are first-generation learners and come from communities whose traditional occupations do not result in the transmission of necessary skills required to perform well in open examination. They have to put in surplus effort to compete with their peers from the forward communities. On the other hand, social networks (based on community linkages) become useful when individuals seek guidance and advice on how to prepare for examination and advance in their career even if their immediate family does not have the necessary exposure. Thus, a combination of family habitus, community linkages and inherited skills work to the advantage of individuals belonging to certain classes, which is then classified as “merit” reproducing and reaffirming social hierarchies.” (emphasis added)

88Copy pinpoint88. Social capital and networks play an important role in the Indian legal setup in advancing legal careers. Most litigation chambers hire advocates through networks and community linkages. The structure of the Indian legal system is such that social capital and networks also

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play an important role in getting clients. The lack of social capital and network is acutely felt by advocates from marginalized communities.94 The marginalized sections of our society face insurmountable obstacles in navigating the Indian legal system.95 This is further compounded by their lack of representation in the legal profession. Greater representation of the marginalized communities in the legal profession will increase the diversity within the profession, enable the marginalized sections to trust the legal system and facilitate the delivery of legal aid and services to unrepresented communities.

89Copy pinpoint89. Section 24(1)(f) prescribes an enrolment fee of Rupees seven hundred fifty from general candidates and Rupees one hundred twenty-five from SC and ST candidates. Therefore, the enrolment fee prescribed for candidates from the SC and ST communities is far less than the fees paid by a candidate from the general category. In 1993, Parliament increased the enrolment fee for general candidates from Rupees two-hundred fifty to Rupees seven-hundred fifty, without disturbing the fees paid by candidates from the SC and ST community. This shows that Parliament is conscious of the socio- economic marginalization of the SC and ST community. However, the present enrolment fee structure reinforces the socio-economic marginalization of the SCs and STs. For instance, the Bar Council of Maharashtra and Goa charges a cumulative fee of Rupees fifteen thousand from the general candidates and Rupees fourteen thousand five hundred from SC and ST candidates. Similarly, in Manipur, the general category candidates pay Rupees sixteen thousand six hundred fifty as an enrolment fee while a candidate from the SC and ST category pays Rupees sixteen thousand fifty. Thus, the candidates from the SC and ST category practically pay as much as the candidates from the general category. This is evidently against the legislative policy of the Advocates Act.

90Copy pinpoint90. Dignity is crucial to substantive equality. The dignity of an individual encompasses the right of the individual to develop their potential to the fullest.96 The right to pursue a profession of one’s choice and

94 Challenges for Dalits in South Asia’s Legal Community, Chapter III – Dalit Justice Defenders in India, American Bar Association (2021) 17 95 Hariram Bhambhi v. Satyanarayan, 2021 SCC OnLine SC 1010 [12] 96 K S Puttaswamy v. Union of India (2017) 10 SCC 1 [525]

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earn livelihood is integral to the dignity of an individual. Charging exorbitant enrolment fees and miscellaneous fees as a pre-condition for enrolment creates a barrier to entry into the legal profession. The levy of exorbitant fees as a pre-condition to enrolment serves to denigrate the dignity of those who face social and economic barriers in the advancement of their legal careers.97 This effectively perpetuates systemic discrimination against persons from marginalized and economically weaker sections by undermining their equal participation in the legal profession. Therefore, the current enrolment fee structure charged by the SBCs is contrary to the principle of substantive equality.

91Copy pinpoint91. In Ravinder Kumar Dhariwal v. Union of India,98 a three-Judge Bench of this Court held that substantive equality is aimed at producing equality of outcomes through different modes of affirmative action. The purpose of the Advocates Act of creating an inclusive Bar cannot be defeated by having exclusionary conditions which seek to create social and economic barriers. The Bar Councils have a responsibility in the public interest to ensure greater representation of persons from marginalized communities in the legal profession.

92Copy pinpoint92. The decision of the SBCs to charge exorbitant fees also suffers from the vice of manifest arbitrariness. In Khoday Distilleries Ltd v. State of Karnataka,99 this Court laid down the following principles for challenging delegated legislation: (i) the test of arbitrary action which applies to executive actions does not necessarily apply to delegated legislation; (ii) a delegated legislation can be struck down only if it is manifestly arbitrary; and (iii) a delegated legislation is manifestly arbitrary if it is not in conformity with the statute or offends Article

14. In Clariant International Ltd. v. SEBI,100 a three-Judge Bench of this Court held that when any criterion is fixed by a statute or by a policy, the subordinate authority must follow the policy formulation broadly and substantially. Non-conformity with the legislative policy will render delegated legislation arbitrary.101

97 See Neil Aurelio Nunes (supra) [35] 98 (2023) 2 SCC 209 [37] 99 [1995] Supp. 6 SCR 759 : (1996) 10 SCC 304 [13] 100 [2004] Supp. 3 SCR 843 : (2004) 8 SCC 524 [63] 101 Secretary, Ministry of Chemicals & Fertilizers, Government of India v. Cipla Ltd (2003) 7 SCC 1 [9]

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93Copy pinpoint93. In Shayara Bano v. Union of India,102 a Constitution Bench held that manifest arbitrariness must be something done by the legislature capriciously, irrationally, and/or without adequate determining principles. It was further held that legislation which is excessive and disproportionate would also be manifestly arbitrary. In Joseph Shine (supra), one of us (D Y Chandrachud, J) held that an “adequate determining principle” is a principle that aligns with constitutional values. With respect to a piece of delegated legislation, an adequate determining principle is a principle that aligns with the legislative policy of the parent enactment as well as constitutional values. Delegated legislation that is forbiddingly excessive or disproportionate will also be manifestly arbitrary.103

94Copy pinpoint94. As held in the preceding segments of this judgment, the SBCs at the time of enrolment charge fees in contravention of Section 24(1)(f) and the legislative policy of the Advocates Act. Therefore, the excess enrolment fees charged by the SBCs are manifestly arbitrary. Further, the effect of charging exorbitant enrolment fees as a pre-condition for enrolment has created entry barriers, especially for people from marginalized and economically weaker sections, to enter into the legal profession. Thus, the current enrolment fee structure is manifestly arbitrary because it denies substantive equality. iii. Article 19(1)(g): unreasonableness

95Copy pinpoint95. Section 30 of the Advocates Act inheres in every advocate whose name is entered in the State roll the right to practice in all courts throughout the territory of India. Article 19(1)(g) of the Constitution provides that all citizens of India shall have the right to practice any profession or to carry on any occupation, trade, or business. Article 19(6) subjects the right under Article 19(1)(g) to reasonable restrictions. Further, the provision allows the State to make any law relating to the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business. Thus, the right to practice law is not only a statutory right but also a fundamental right protected under Article 19(1)(g).104 However, the right of citizens to practice law can be regulated and

102 [2017] 9 SCR 797 : (2017) 9 SCC 1 [101] 103 Franklin Templeton Trustee Services (P) Ltd. v. Amruta Garg (2021) 9 SCC 606 [79] 104 N K Bajpai v. Union of India (2012) 4 SCC 653 [25]

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is not absolute.105 Under the Advocates Act, only those advocates who are admitted on the State roll have a right to practice throughout the territory of India.106

96Copy pinpoint96. In Chintamanrao v. State of Madhya Pradesh,107 a Constitution Bench explained the purpose of the expression “reasonable restrictions” thus: “8. The phrase “reasonable restriction” connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word “reasonable” implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by clause (6) of Article 19, it must be held to be wanting in that quality.”

97Copy pinpoint97. In Rashid Ahmed v. Municipal Board, Kairana,108 a Constitution Bench of was called upon to decide the validity of bye-laws framed by the Municipal Board. Bye-law 2 provided that no person could establish any new market or place for wholesale transactions without the previous permission of the Municipal Board. Justice S R Das (as the learned Chief Justice then was), speaking for the Constitution Bench, held: “11. The Constitution by Article 19(1) guarantees to the Indian citizen the right to carry on trade or business subject to such reasonable restrictions as are mentioned in clause (6) of that article. The position, however, under Bye-law 2 is that while it provided that no person shall establish a market for wholesale transactions in vegetables except with the permission of the Board, there is no bye-law authorising the respondent Board to issue the licence. The net result

105 Jamshed Ansari v. High Court of Judicature at Allahabad (2016) 10 SCC 554 [17] 106 N K Bajpai (supra) [25] 107 [1950] 1 SCR 759 : 1950 SCC 695 108 [1950] 1 SCR 566 : 1950 SCC 221

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is that the prohibition of this bye-law, in the absence of any provision for issuing licence, becomes absolute.”

98Copy pinpoint98. In Mohammad Yasin v. Town Area Committee, Jalalabad,109 a Constitution Bench of this Court was called upon to determine the validity of the bye-laws framed by the Town Area Committee imposing licence fees on any person intending to sell in wholesale at any place in the town area. The issue before this Court was whether the Committee had legal authority to impose the fees. Justice S R Das (as the learned Chief Justice then was) observed that a “licence fee on a business not only takes away the property of the licensee but also operates as a restriction on his right to carry on his business, for without the payment of such fee the business cannot be carried on at all.” It was held that the restriction on the fundament right under Article 19(1)(g) can be imposed by the State according to Article 19(6). It was held that an illegal impost is an unreasonable restriction on the right to carry on occupation, trade or business under Article 19(1)(g): “12. […] If, therefore, the licence fee cannot be justified on the basis of any valid law no question of its reasonableness can arise, for an illegal impost must at all times be an unreasonable restriction and will necessarily infringe the right of the citizen to carry on his occupation, trade or business under Article 19(1)(g) and such infringement can properly be made the subject-matter of a challenge under Article 32 of the Constitution.”

99Copy pinpoint99. In Mohammad Yasin (supra), the United Provinces Town Areas Act 1914 empowered the Town Area Committee to charge fees for the use or occupation of any immoveable property vested in or entrusted to the management of the Town Area Committee, including any public street or place. It was held that this power did not include the power to levy licence fees on a person intending to sell in wholesale at any place in the town area. Therefore, it was held that the licence fee imposed by the Town Area Committee was ultra vires the 1914 Act: “20. In our opinion, the bye-laws which impose a charge on the wholesale dealer in the shape of the prescribed fee,

109 [1952] 1 SCR 572 : (1952) 1 SCC 205

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irrespective of any use or occupation by him of immovable property vested in or entrusted to the management of the Town Area Committee including any public street, are obviously ultra vires the powers of the respondent Committee and, therefore, the bye-laws cannot be said to constitute a valid law which alone may, under Article 19(6) of the Constitution, impose a restriction on the right conferred by Article 19(1)(g). In the absence of any valid law authorising it, such illegal imposition must undoubtedly operate as an illegal restraint and must infringe the unfettered right of the wholesale dealer to carry on his occupation, trade or business which is guaranteed to him by Article 19(1)(g) of our Constitution.”

100Copy pinpoint100. In Cooverjee B Bharucha v. Excise Commissioner,110 another Constitution Bench held that a licence fee levied without the authority of law was not protected under Article 19(6). In R M Seshadri v. District Magistrate,111 the District Collector imposed a condition compelling the licencee to exhibit at each performance one or more approved films of such length and for such length of time as directed by the Government. The condition was challenged for violation of Article 19(1)(g). A Constitution Bench of this Court observed that the condition was couched in wide language and did not lay down any guideline to the licencing authority. It was held that a “condition couched in such wide language is bound to operate harshly upon the cinema business and cannot be regarded as a reasonable restriction.”

101Copy pinpoint101. We can cull out the following principles from the above discussion: (i) the power of the authority to impose restrictions on the right under Article 19(1)(g) is not absolute and must be exercised in a reasonable manner; (ii) any fees or licences levied by the authorities must be valid and levied on the basis of the authority of law; and (iii) delegated legislation which is contrary to or beyond the scope of the legislative policy laid down by the parent legislation places an unreasonable restriction in violation of Article 19(1)(g).112

110 [1954] 1 SCR 873 : (1954) 1 SCC 18 [9] 111 (1954) 2 SCC 320 112 Minerva Talkies v. State of Karnataka, 1988 Supp SCC 176 [15]

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102Copy pinpoint102. According to the current enrolment fee structure of the SBCs, an advocate has to pay anywhere between Rupees fifteen thousand to Rupees forty-two thousand as a pre-condition to enrolment. As held in the above segments of this judgment, the SBCs charge enrolment fees in excess of the stipulated fee prescribed under Section 24(1)(f). The excess enrolment fee imposed by the SBCs is without authority of law. Compounded with this there are no reasonable criteria behind the decision of the SBCs to charge such exorbitant amounts as enrolment fees. The SBCs cannot have unbridled powers to charge any fees given the express legislative policy under Section 24(1)(f). Imposing excessive financial burdens on young law graduates at the time of enrolment causes economic hardships, especially for those belonging to the marginalized and economically weaker sections of the society. Therefore, the current enrolment fee structure charged by the SBCs is unreasonable and infringes Article 19(1)(g). H. Financial implications for the SBCs and the BCI

103Copy pinpoint103. As discussed in the above segments of this judgment, we are cognizant of the fact that the SBCs and the BCI depend entirely on the amount collected from candidates at the time of enrolment for performing their functions under the Advocates Act, including payment of salaries to their staff. According to the legislative scheme of the Advocates Act, the Bar Councils must only charge the amount stipulated under Section 24(1)(f) as an enrolment fee. Instead of devising ways and means to charge fees from enrolled advocates for rendering services, the SBCs and the BCI have been forcing young law graduates to cough up exorbitant amounts of money as a pre-condition for enrolment.

104Copy pinpoint104. Once the advocates are enrolled on the State rolls, the Bar Councils can charge fees for the services provided to the advocates in accordance with the provisions of the Advocates Act. It is for the SBCs and the BCI to devise an appropriate method of charging fees that is fair and just not only for the law graduates intending to enroll, but also for the advocates already enrolled on the State rolls. There are several reasonable ways by which the SBCs and BCI can and already do collect funds at later stages of an advocate’s career. For instance, under the Advocates Welfare Fund Act 2001, advocates must affix mandatory welfare stamps on vakalatnamas which are used to collect funds for advocate welfare. Unlike an enrollment fee

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charged before a graduate is given a fair chance to earn a living, such sources of income are directly correlated to the advocates’ practice.

105Copy pinpoint105. It is clarified that the only charges permissible at the stage of enrolment are those stipulated under Section 24(1)(f) of the Advocates Act. All other miscellaneous fees, including but not limited to, application form fees, processing fees, postal charges, police verification charges, ID card charges, administrative fees, photograph fees etc. charged from the candidates at the time of admission are to be construed as part of the enrollment fee. The fees charged under these or any similar heads cannot cumulatively exceed the enrolment fee prescribed in Section 24(1)(f).

106Copy pinpoint106. The Advocates Welfare Fund Act 2001113 is enacted to provide for the constitution of a welfare fund for the benefit of advocates. Section 3 provides that the appropriate government shall constitute an Advocates Welfare Fund. Section 15 mandates the SBCs to pay annually to the welfare fund an amount equal to twenty per cent of the enrolment fee received by it under Section 24(1)(f) of the Advocates Act.114 This decision will not have any effect on the obligation of the SBCs under Section 15 because they will continue to charge the enrolment fee as stipulated under Section 24(1)(f).

107Copy pinpoint107. The SBCs and the BCI are directed to ensure that the fees charged at the time of enrollment comply with Section 24(1)(f) and the provision is not defeated either directly or indirectly under the garb of different nomenclatures. The SBCs cannot charge an enrolment fee or miscellaneous fees above the amount prescribed in Section 24(1)(f). No case is made out for this Court to exercise its power under Article 142 to implement the BCI Draft Enrolment Rules in their current form.

108Copy pinpoint108. The result of this decision would have entitled advocates who have paid the excess enrolment fee to a refund from the SBCs.115 The SBCs have been levying the enrolment fees for a considerable

113 “2001 Act” 114 Section 15, Advocates Welfare Fund Act 2001. [It reads:

15. Payment of certain monies to Fund by State Bar Council – The State Bar Council shall pay to the Fund annually an amount equal to twenty per cent of the enrolment fee received by it under clause (f) of Section 24 of the Advocates Act, 1961 (25 of 1961).] 115 See Somaiya Organics (India) Ltd v. State of U.P. (2001) 5 SCC 519 [46]

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duration and utilizing the collected amounts to carry out their day-to- day functioning. Therefore, we declare that this judgment will have prospective effect. Resultantly, the SBCs are not required to refund the excess enrolment fees collected before the date of this judgment. I. Conclusions

109Copy pinpoint109. In view of the above discussion, we conclude that: a. The SBCs cannot charge “enrolment fees” beyond the express legal stipulation under Section 24(1)(f) as it currently stands; b. Section 24(1)(f) specifically lays down the fiscal pre-conditions subject to which an advocate can be enrolled on State rolls. The SBCs and the BCI cannot demand payment of fees other than the stipulated enrolment fee and stamp duty, if any, as a pre-condition to enrolment; c. The decision of the SBCs to charge fees and charges at the time of enrolment in excess of the legal stipulation under Section 24(1)(f) violates Article 14 and Article 19(1)(g) of the Constitution; and d. This decision will have prospective effect. The SBCs are not required to refund the excess enrolment fees collected before the date of this judgment.

110Copy pinpoint110. In view of the above, the writ petition, transferred cases and transfer petitions are disposed of.

111Copy pinpoint111. Pending application(s), if any, stand disposed of.

Result of the case: Matters disposed of.

† Headnotes prepared by: Ankit Gyan