Saturday, March 25, 2023

Gujarat High Court Dismisses petition challenging increase in enrollment fee by Bar Council

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The Gujarat High Court, on Tuesday dismissed a petition challenging the increase in the enrollment fee of advocates by the Bar Council of India and Bar Council of Gujarat, and also for issuance of certificate of Practice under the Advocates Act, 1961 and Bar Council of India Rules, 1975, while refraining from commenting on validity of the All India Bar Examination.

The petitioner, in the present writ petition, after completing his three year LL.B. Degree Course applied to the Bar Council of Gujarat for being enrolled as an advocate but his application for enrollment was not processed by Bar Council of Gujarat because of non-deposition of fee. The relief claimed by him was for issuance of directions to the respondent Bar Council of Gujarat to process his application for registration and enrollment with enrollment fee of Rs.750/- only and not more, and also direction to both the Bar Council of India and the Bar Council of Gujarat to issue Certificate of Right to Practice under Section 30 of the Advocates Act, 1961, post enrollment without any delay.

The petitioner, through an amendment to the prayer, also prayed for declaration of Rules 9 to 11 in Part-VI, Chapter-III of the Bar Council of India Rules, which lays down the conditions for Right to Practice Law as ultra vires of Section 24 and Section 30 of the Advocates Act, 1961 and also Articles 14, 19(1)(g) and 21 of the Constitution of India.

A Division bench presided by Chief Justice Vikram Nath and Justice Ashutosh J. Shastri noted that the rules in question in the petition question the validity of All India Bar Examination, the issue is already sub-judice before the Supreme Court, and is to be considered by a Constitution Bench of the Supreme Court in March. The Court has previously held that the questions involved affect the legal profession and had to be answered by the Constitution Bench of five judges.

With reference to the challenge to the enrollment amount of Rs. 750, the Court stated that Section 24(f) of the Act of 1961 was amended by the Bar Council of India in 1973 adding the conditions of payment of stamp duty and it was further amended to increase the rate of enrollment fees and payment to the Bar Council of India. The increase in the amount was in the scope of power of State Bar Council and BCI in view of the provisions of of the Act of 1961.

The Court held that according to the provisions of the Act and the Rules thereunder, the increase in the enrollment fee is justified and there is no conflict between the Act and the Rules, on application of the principles of Harmonious construction.

The Act of 1961 provides entitlement to levy enrollment fees for enrollment as an advocate, such right being considered fundamental, and thus cannot be withheld by any rule. However prescribing the rate of fees is merely ancillary and can be modified by the Rules as apparent from Section 49 of the Act. Therefore if rule of harmonious construction is applied between the Act and the Rules is that the rate as mentioned in Section 24 is to be treated as bare minimum fees which is always amenable for further increase.

-Srishti Ojha 


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