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Judgment
E. Padmanabhan, J.—W.P.No.9712 of 2000 has been filed by Mr. S. Kolappan praying for the issue of writ of certiorarified mandamus to
call for and quash the communication of the first respondent dated 31.5.2000 and direct the respondents not to interfere with the petitioner''s right
to practise his profession as far as the petitioner is concerned. This Court ordered notice to the respondents 1, 2 and 3, The respondents have
been served. With respect to the 4th respondent, the counsel for the petitioner made an endorsement giving up the 4th respondent namely.
Chairman, Bar Council of India, New Delhi as the 4th respondent had not interfered with the petitioner''s right to practice.
W.P. No.10407 of 2000 has been filed by the petitioner J. Parameswaran Thambi praying for the issue of certiorarified mandamus to call for
and quash the communication of the second respondent in Proc.BCI/D/496/2000 (LE/Misc.) dated 26.5.2000 and the order by the 5th
respondent in letter dated 31.5.2000 and to quash the same and consequently direct the respondents not to prevent the petitioner from practising
as an Advocate anywhere in India.
In this writ petition also, this Court ordered Notice of Motion to the respondents on 26.6.2000. Steps have been taken to serve the
respondents. The respondents 3, 4 and 5 have entered appearance. As regards the respondents 1 and 2 though Mr. S.M. Subramanian, the
counsel for the petitioner had served notice privately but at the hearing gave up the respondents 1 and 2.
In the circumstances in both the writ petitions the Bar Council of India or its Chairman are not parties and the claims of the writ petitioners in
both the writ petitions is only against the other respondents.
Heard Mrs. Ammu Balachandran, for the petitioner in W.P.No.97I2 of 2000, Mr. S.M. Subramanian for the petitioner in W.P. No. 10407 of
2000, Mr. V. Selvaraj for the Secretary, Bar Association, Nagercoil (Respondent No. 1 in W.P.No.9712 of 2000 and Respondent No.5 in
W.P.No. 10407 of 2000) and Mr. K. Muthuramalingam for the Chairman as well as Secretary, Bar Council of Tamilnadu (Respondents 2 and 3
in W.P.No.9712 of 2000 and Respondents 3 and 4 in W.P.No.10407 of 2000).
Petitioner''s Case in W.P.No. 9712/ 2000: The petitioner claims that he had completed M.A. degree during the year 1991-1993 in Annamalai
University, that he joined the Bangalore University and secured L.L.B. degree during October 1998 that he secured M.A. degree from Open
University that he secured approval from the University of Bangalore to join the 3 years Law Course as a regular student and completed the same
during 1998, that he was enrolled as Member of the Bar as an Advocate on the rolls of the Tamil Nadu Bar Council, that his roll number being
M.S.370/ 99, that after enrolment he had been practicing at Nagercoil District Court and other Courts, that he became a Member of the Bar
Association of Nagarcoil on 2.8.1999, that he was surprised to receive a notice dated 31.5.2000 from the Secretary, Nagercoil Bar Association,
wherein it has been stated that the petitioner is ineligible to practise as per ref/No.496/2000 of Bar Council of India, Delhi dated. 26.5.2000, that
he was forcibly prevented from entering the Courts, that the communication received from the All India Bar Council had not been furnished nor an
enquiry conducted nor notice whatsoever had been served on the petitioner by the 1st respondent nor his name has been removed from the rolls of
the Bar Council of Tamil Nadu, that the first respondent, Secretary, Bar Association Nagercoil has neither the jurisdiction nor the authority to hold
that the petitioner is ineligible to practise, that the action of the Bar Association and its Secrete and its office-bearers is without jurisdiction and it is
nothing but terrorising the petitioner and they have been forcibly preventing the petitioner from entering the Courts and practising which results in
deprivation of his livelihood, that the act of the respondents is nothing but short of criminal intimidation and that the Bar Association had usurped
the functions of the Bar Council of Tamil Nadu and Bar Council of India by issuing letter dated 31.5.2000.
It is the further case of the petitioner that he made representation to the Bar Council but no action has been taken, that the petitioner is qualified
in all respects for his being admitted as Member of the Bar Council as he possesses the required qualification, that his name continues to remain in
the rolls of the Bar Council of Tamil Nadu which Council had already admitted the petitioner to the rolls of the Bar Council, that the action of the
Bar Association, Nagercoil is illegal and it cannot usurp the functions of Bar Council, that the entire action of the Bar Association is without
jurisdiction and the action of the office-bearers of the Bar Association, Nagercoil is intimidatory and nothing but terrorising the bar members and
that the respondents have acted high handedly .
Petitioner''s Case in W.P.No.10407 of 2000: The Petitioner claims that he acquired M.A. from Annamalai University under the Distance
Education Scheme and the said University issued a certificate for Master of Arts in History and that the said Annamalai University is a recognised
University of the U.G.C. The petitioner claims that his M.A. Degree was evaluated for the purpose of admission to Law Course at Bangalore by
the Bangalore University, that he had successfully completed the Law Course during the year 1999, that he had completed the Law Degree and
that he has enrolled himself with the Bar Council of Tamil Nadu. The petitioner states that his roll Number is 2046 of 1999. The Bar Council of
Tamil Nadu after verifying the Certificates produced and after being satisfied that the petitioner possesses the requisite qualifications for being
enrolled as a Member of the Bar Council admitted him and enrolled him as a Member of the Bar Council. The petitioner further states that he
became a Member of the Bar Association, Nagercoil.
The petitioner alleges that by the impugned letter dated 31.5.2000 the Secretary, Bar Association, Nagercoil intimated that the petitioner is not
eligible to practice as an Advocate, while placing reliance on a letter of Bar Council of India dated 26.5.2000. The petitioner requested the
Secretary, Bar Association, Nagercoil to furnish copy of the communication received from the Bar Council of India. According to the petitioner the
action of the Secretary, Bar Association, Nagercoil is illegal, without jurisdiction, violative of principles of natural justice and arbitrary. According
to the petitioner he has acquired valid degree and he has been admitted to Bar Council and so long as his name finds place in the rolls of the Bar
Council of Tamil Nadu, there could be no interference by the Bar Association of Nagercoil and the Bar Association of Nagercoil has usurped the
functions of the Bar Council of India as well as Tamil Nadu Bar Council. The action of the Bar Association, Nagarcoil, is illegal, arbitrary and it is
being challenged as violative of Articles 14and 21of the Constitution besides violative of principles of natural justice.
It is also alleged that the Bar Association, Nagercoil had caused publication of a notice in the local dailies with ulterior motive to defame the
petitioner and it has been bodily preventing the petitioner from practising as Advocate and earning his livelihood. According to the petitioner, the
Bar Association, Nagercoil has neither the authority nor the jurisdiction to prevent the petitioner from practising nor they have got the authority to
state that the petitioner is ineligible to practise so long as his name finds place in the rolls of Bar Council of Tamil Nadu and the said Council had
not taken any action against the petitioner.
The 1st respondent, who has been impleaded as Secretary, Bar Association, had filed a counter affidavit in both the writ petitions.
Counter Case of the Secretary, Bar Association, Nagercoil: It is pointed out by the Secretary, Bar Association, Nagercoil that the writ
petitioner had claimed that he acquired M.A. Degree from Annamalai University through open University Scheme, that the petitioner also claimed
that he underwent LLB Degree in the evening college under the control of Bangalore University and secured LLB Degree from that University and
that the petitioner had also claimed that he had enrolled himself as an Advocate on 8.3.1999 by the Bar Council of Tamil Nadu. According to the
first respondent, the Bar Association came to know of several persons obtaining invalid or irregular or false degrees and getting themselves
enrolled as Advocates with the connivance of certain persons in responsible position in the Bar Council of Tamil Nadu. In the circumstances, the
Bar Association framed strict guidelines to screen the persons, who wanted to join the Association as members. The Nagercoil Association
required the new members as well as the existing members to give copies of certificates of their qualifying examinations. On verifications, the
Association found that there were many who were not qualified but were claiming to be and practising as Advocates on the basis of their enrolment
by the Bar Council of Tamil Nadu. On behalf of the said Association, criminal complaints came up to be filed and already FIRs have been
registered against 46 persons. The Secretary of the Nagercoil Association also claims that he had also filed W.P.No.14991 of 1999 on the file of
this Court seeking the relief of mandamus directing investigation by C.B.I to find out bogus advocates practising in India and to prosecute them.
The said public interest writ petition has been admitted on 8.9.1999 and the Bar Council of Tamil Nadu was directed to submit a report within 2
months from 8.9.1999.
According to the Bar Association of Nagercoil under the Advocates Act, 1961 and the Bar Council of India Rules, the Bar Council of India
alone is empowered to prescribe the qualification for admission to a course of degree in law in any recognised University. It is further stated that
the Bar Council of India has notified that the degrees obtained through Open University of Annamalai, Madurai-Kamaraj and Bharathidhasan in
Tamil Nadu are not recognised by the Bar Council of India as a qualification for admission to the 3-year law course and persons holding degrees in
law obtained on the basis of such basic degrees are not eligible for enrolment as Advocates. The Secretary, Nagercoil, Bar Association has
brought this to the notice of the Tamil Nadu Bar Council. The Bar Council of Tamil Nadu had in turn addressed a communication to the Director
General of Police to identify bogus advocates practising in Tamil Nadu.
According to the Bar Association, Nagercoil, in the circumstances, it had sent a communication to the writ petitioner and four others conveying
that in view of the Bar Council Rules they are not eligible for enrolment as Advocates and that they cease to be members of the Bar Association,
Nagercoil. The allegation that the writ petitioner was forcibly prevented from entering the Courts is false. It is claimed that the Respondent
Nagercoil Bar Association is entitled to expel the persons who are not qualified to be enrolled as advocates from membership and that the writ
petition is not maintainable. The Secretary, Bar Association, Nagercoil prayed for dismissal of the writ petition.
In W.P. No. 10407 of 2000 also, an identical counter affidavit has been filed and the same stand has been reiterated. It is essential to
incorporate the two paragraphs of the Counter filed by the said Secretary,
I state that the Bar Association, Nagercoil has in the above circumstances sent a communication to the writ petitioner and 4 others stating that in
view of the Bar Council Rules they are not eligible for enrolment as Advocates. They were also informed that they cease to be members of the Bar
Association, Nagercoil.
I state that the Bar Association is entitled to expel persons who are not qualified to be enrolled as advocates from its membership. The writ
petition is therefore not maintainable.
On behalf of the Bar Council of Tamil Nadu a common counter affidavit has been filed by the Secretary of the Bar Council of Tamil Nadu in
both the writ petitions. While referring to Section 24of the Advocates Act and the Rules framed thereunder as well as format prescribed, it has
been stated that a person should undergo a regular course of study in law for a period of 3/5 years and attend the classes regularly and such law
colleges should be approved by the Bar Council of India and the law colleges should be affiliated to an University recognised by the Bar Council of
India. If those conditions are satisfied, the persons who secure the law degree from such universities are permitted to get enrolled as Advocates on
the rolls.
It is stated that the Bar Council of Tamil Nadu received a letter dated 12.6.2000 from the Secretary of Nagercoil Bar Association referring to
a letter received from the Bar Council of India dated 26.5.2000. The Tamil Nadu Bar Council had not received such a communication and it had
taken up the matter with the Bar Council of India to clarify the rules relating to basic degree for the admission of Law Courses by its letter dated.
17.6.2000. On 22.6.2000 the Bar Council of Tamil Nadu had received a reply from the Bar Council of India intimating that the letter of the Bar
Council of Tamil Nadu is being placed before the Legal Education Committee of the Bar Council of India at its next meeting for its consideration.
The Bar Council of Tamil Nadu is awaiting the decision of the Legal Education Committee with regard to the basic degrees required for joining
three-year law course.
It has been stated on behalf of the Bar Council of Tamil Nadu that Advocates, who have obtained law degree after acquiring basic degree
from Open University are concerned, the Bar Council of Tamil Nadu have no proposal to initiate any proceedings against them as they have
secured law degree from a recognised University, after undergoing regular course of study in law. As per the Rules prescribed, a law degree from
any University shall not be recognised unless the conditions stipulated therein are not fulfilled. The eligible conditions for admissions as seen from
the counter affidavit are:
a. That at the time of joining the course of instruction in law for a degree in law, he is graduate of a University or possesses such academic
qualifications which are considered equivalent to a graduate''s degree of a University by the Bar Council of India.
b. That the law degree has been obtained after undergoing a course of study in law for a minimum period of three years as provided in these Rules.
c. That the course of study in law has been by regular attendance at the requisite number of lectures, tutorials or moot courts in a college
recognised by a University.
According to the Bar Council of Tamil Nadu it has not sent any show-cause notice to the writ petitioner with regard to eligibility for enrolment as
Advocate and that the writ petition is premature.
It is to be pointed out that the Bar Council of Tamil Nadu had not taken any specific stand nor it had adverted to the case of the petitioner with
respect to the material particulars and details as claimed by the respective writ petitioners nor the Bar Council of Tamil Nadu has stated that the
petitioners are ineligible to the admitted nor it has been stated that the Bar Council is examining or reexamining the qualifications of the two writ
petitioners and their eligibility to become members of the Bar nor it has been stated that any action is contemplated against the two writ petitioners.
The copy of the letter addressed to the Secretary, Bar Council of India as well as the reply received from the Bar Council of India had been
placed before the Court by the Bar Council of Tamil Nadu.
This Court would not be justified in going into the questions which are required to be decided by the Bar Council of Tamil Nadu or as to the
eligibility of the writ petitioners for being admitted to the rolls of the Bar Council or their right to practice. The counter affidavit filed by the Bar
Council of Tamil Nadu is innocuous. They have no specific stand nor they have taken a stand which would commensurate with that of a statutory
body. The counter affidavit filed by the Bar Council of Tamil Nadu is non-committal and it only refers to a reply received from the Bar Council of
India. The Bar Council of Tamil Nadu has not even indicated that it is examining or the eligibility of the petitioners are being examined nor it has
been stated that any action is proposed or pending against the writ petitioners or other members despite representation of Nagercoil Bar
Association with respect to ineligibility or qualifications or enrolment or otherwise.
Further this Court was informed that a public interest litigation is pending seeking for a direction to initiate action against the bogus members
who got themselves enrolled as members of the Bar Council of Tamil Nadu. This Court is not expressing any opinion with respect to the issues
involved therein nor this Court will be justified in examining the qualifications of the petitioner herein for being admitted to the Bar Council of Tamil
Nadu and enrolled as members.
Before taking up the points for consideration, it is essential to refer the cause and source of communication based upon which such
communication has been sent by the Bar Association of Nagercoil. On a query from the Secretary, Bar Association, Nagercoil made in its letter
dated 18.5.2000, the Bar Council of India had sent its reply dated 26.5.2000 which reads thus:
It may be noted that this Council has so far recognised only M.A. Degree obtained through Open University System of Mysore University alone.
On receipt of the above letter from the Bar Council of India, the Secretary Bar Association, Nagercoil had in his turn written the Impugned
Communication dated 31.5.2000, which reads thus:
The following persons are ineligible to practise as advocates as per Ref.No.496/2000 of Bar Council letter dated. 26.5.2000.
Parameswaran Thambi
Kolappan
N.T. Radhakrishnan
Maharaja Pillai
The above cease to be members of the Bar from today (31.5.2000)
This communication of the Bar Association of Nagercoil is impugned in both the writ petitions. This communication of the Bar Association of
Nagercoil could be divided into two parts. First Part relates to eligibility to enrol and ineligibility to practise as Advocate in respect of the four
persons set out therein and the second part is that the said four members cease to be the Members of the Bar from today.
To a specific query from the Court, Mr. V. Selvaraj, learned counsel appearing for the Secretary, Bar Association, Nagercoil stated that the
expression ''Bar'' appearing in the impugned communication dated 31.5.2000 means the Bar Association of Nagercoil and not any other body. It is
the specific stand of the Bar Association of Nagercoil that the writ petitioners cease to be the members of the Bar Association of Nagercoil. During
the hearing also it was reiterated by Mr. V. Selvaraj, the expression ''Bar'' appearing in the Communication means only Bar Association of
Nagercoil and that the petitioners cease to be the Members of the Bar Association of Nagercoil. Last line of para 6 of the Counter affidavit
extracted above makes it clear the writ petitioners cease to be the Members of the Bar Association, Nagercoil.
Though the Bar Association, Nagercoil is an unregistered Association, Mr. V. Selvaraj, in his usual fairness submitted that the respondent Bar
Association is not objecting to the maintainability of the writ petition is not being disputed by the learned counsel Mr. V. Selvaraj appearing for the
Bar Association of Nagercoil, this court will proceed further to decide as to the authority of the said ''Bar Association'' to send the impugned
communication.
Whether the petitioners cease to be a member of the Bar Association, Nagercoil or whether they are expelled from the Bar Association,
Nagercoil or whether they have been sent out from the Bar Association, Nagercoil cannot be gone into in this writ petition as such dispute between
the member and the Association be it registered or unregistered cannot be gone into under Article 226of the Constitution. If a member is aggrieved
by expulsion or removal or otherwise from an Association he has to work out his remedies before a competent Civil Court. In this respect this
court had occasion to deal with an identical question wherein after hearing the arguments of Mr. R. Karuppan, who had appeared for the petitioner
therein and after analysing the case law held thus:
In Union of India and Another Vs. S.P. Anand and Others, their Lordships of the Apex Court held that before issuing a writ the High Court
should be satisfied that a prima facie case has been made out.
It is also equally well-settled that before issuing writ, the Court has to examine what is the right which is sought to be enforced or what is the
nature of right and against whom such right is sought to be enforced.
It is not the case of the learned counsel for the petitioner that the respondent Club will fall within the purview of ''State'' or ''other authority'' in
terms of Article 12nor it could be stated that the fundamental rights of petitioner had been violated by the respondent Club by expelling the
petitioner for non-payment of dues.
It would be appropriate to note as to what are the principles of the social clubs like the respondent club and what the members to do in their
clubs. The club belongs to members for the time being on its list of members and that is what matters. Those members can deal with the club as
they like. Therefore the club is identified with its members at a given time. Thus it cannot be said that the club has an existence apart from the
members.
The decision of Bakthavatsalam. J in LT. Col. Offg. Col. Q Branch Hq Tn & KG. Ravindran Pillai and Others v Colonel Q HQ, Tamil Nadu
and Kerala Madras - 9 and another (1999 Writ L.R. 259) is clearly distinguishable and it has no application to the facts of the case.
In the result, on a consideration of the entire case law, this Court holds that no writ is maintainable nor it could be entertained nor this Court
would be justified in issuing a rule nisi as the petitioner has an effective remedy of a civil suit though it may be time consuming. Hence the Writ
petition is dismissed. Consequently, the Connected W.M.Ps are also dismissed.
As Mr. Selvaraj fairly states that as the Bar Association has interfered with the right of the petitioners to practise it would amount to
interference with the fundamental right to practise guaranteed under Article 19(1)(g) of the Constitution the respondent Bar Association is not
objecting to the maintainability of the writ petition in so far as the impugned communication interfered with the rights of the petitioner to practise as
Advocate whose name finds place in the rolls of the State Bar Council.
In the said pronouncement this Court has followed the earlier Division Bench Judgment and therefore with respect to the second part of the
communication which reads as ""The above cease to be the members of the Bar from today 31.5.2000"" cannot be gone into. In other words,
whether the petitioners have been expelled or removed from the Bar Association, Nagercoil validly or invalidly cannot be gone into and liberty is
given to the petitioner to work out their remedies before a competent Civil Court having jurisdiction. Hence this Court declines to go into the
validity or invalidity of the removal or expulsion or cessation of the petitioners from the membership of the Nagercoil Bar Association.
The first part of the impugned communication alone requires consideration and the said portion has already been extracted above. The
Secretary, Bar Association had intimated the two petitioners herein as well as two others that they are not eligible to practise as Advocate as per
letter of the Bar Council of India dated 26.5.2000. Here again, it is made clear as to whether the petitioners are eligible or whether they have been
rightly admitted or enrolled by the Bar Council of Tamil Nadu is not being decided and it is left open to be decided by the Bar Council of Tamil
Nadu at the appropriate stage. However, when the Bar Council of Tamil Nadu had not taken any action nor it had issued a show-cause notice nor
it had removed the names of the petitioners from its rolls, it is to be pointed out that the Secretary, Bar Association, Nagercoil has neither the
authority nor the jurisdiction either to decide or to point out that the petitioners are ineligible to practise as Advocates.
The letter relied upon by the Secretary, Nagercoil Bar Association received from the Bar Council of India is a general reply and what was the
occasion to send such reply by the Bar Council of India or the contents of the letter sent by the Bar Association of Nagercoil is not known nor it
has been placed. Be that so, unless the competent authority expels or removes or deletes the names of the petitioners from the rolls of the Bar
Council of Tamil Nadu, the Secretary, Bar Association Nagercoil has neither the authority nor the jurisdiction to indicate or declare or hold that the
writ petitioners are ineligible to practise as Advocates. Such an action of the Secretary, Bar Association, Nagercoil is nothing but usurpation of a
power, which is vested with the Bar Council and at times by Courts.
The Secretary, Bar Association has neither the authority nor the jurisdiction to decide the said dispute. The Secretary, Bar Association or the
Bar Association, Nagercoil has no such authority or jurisdiction or competency to decide as to the eligibility or ineligibility of the petitioners to
practise as Advocates. The Bar Association and its Secretary have acted in the said fashion in all probability with over enthusiasm and a news item
also appeared in the press in this respect. The Bar Association has acted with over enthusiasm and it should have restrained itself instead it should
have brought to notice of the Bar Council of Tamil Nadu or Bar Council of India for suitable action. The Bar Association of Nagercoil of which the
petitioners are members is an unregistered body and it has neither the authority nor jurisdiction, nor the power to decide the eligibility or ineligibility
of a Member of the Bar either to practise or to enrol or the admission of such members by the Bar Council of Tamil Nadu and their continuance in
the rolls of the Bar Council.
Mr. V. Selvaraj, is unable to point out any of the previsions of the Advocates Act or the Rules framed thereunder, which would enable the Bar
Association of Nagercoil to issue such a communication. All that Mr. Selvaraj, learned counsel for the petitioner repeated or insisted is that the
petitioners are ineligible and therefore they ought not to have been admitted as Members of the Bar by the Tamil Nadu Bar Council and such a
question could very well be gone into by this Court. This Court is unable to sustain such a contention. The question whether a person is eligible to
be admitted or validly admitted should be decided by the Bar Council of Tamil Nadu or the Bar Council of India and it is their function which they
are expected to discharge when once a reference is made to them after examination of the facts of the individual case, following the principles of
natural justice and pass suitable orders.
The Advocates Act, 1961 (Central Act 25 of 1961) is an Act to amend and consolidate the law relating to legal practitioners and to provide
for the constitution of Bar Councils and an All India Bar as well. Section 2is the definition Section. Section 2(1)(a) defines the expression
''Advocate'' as an advocate entered in any roll under the provisions of the Act. Section 2(H) defines the expression ''Law graduate'' as a person
who has obtained a bachelor''s degree in law from any university established by law in India. Section (2)(n) defines ''State roll'' as a roll of
advocates prepared and maintained by a State Bar Council u/s 17of the Act. Chapter II of the Act provides for the constitution of Bar Council in
the various States including the State of Tamil Nadu. Section 4provides for constitution of Bar Council of India. Section 6provides the functions of
the State Bar Councils. The functions of the State Bar Council among other things include (i) to admit persons as advocate on its role;(ii) to
prepare and maintain such roll (iii) to entertain and determine cases of misconduct against advocates on its roll.
Section 7prescribes the functions of the Bar Council of India. Chapter III of the Act provides for admission and enrolment of Advocates.
Section 16provides that there shall be two classes of advocates namely Senior Advocates and other advocates. Section 24prescribes the
qualifications to be admitted as advocate on a State rolls. Section 24-A prescribes the disqualifications for enrolment. Section 26provides for
disposal of applications for admission as advocate. Chapter IV relates to right of the members to practise. Chapter V prescribes the conduct of the
advocates. Section 59confers powers on the Bar Council of India to make rules. Section 49 A confers power on the Central Government to make
Rules.
The Bar Council of India had framed the rules, the standards of legal education and recognition of degrees in law for admission as advocates.
It is relevant to refer to sub-rule (1) of Rule 1 of Part IV Section B of the Rules as it stands today a copy of which had been placed before the
Court by the Counsel appearing for the Bar Council of Tamil Nadu:
I. (1) Save as provided in Section 24( 1 )(c) (iiia) of the Act a degree in law obtained from any university in the territory of India after the 12th day
of March 1967 shall not be recognised of purposes of Section 24(1) (c) (iii) of the Act unless the following conditions are fulfilled:
(a). That at the time of joining the course of instruction in law for a degree in law, he is a graduate of a university or possesses such academic
qualifications which are considered equivalent to a graduate''s degree of a university by the Bar Council of India;
(b). That the law degree has been obtained after undergoing a course of study in law for a minimum period of three years as provided in these
rules;
(c). That the course of study in law has been by regular attendance at the requisite number of lectures, tutorials or moot Courts in a college
recognised by a ''University.
Sub Rule (2) also provides that the law education u/s B may be through whole time colleges or through part-time morning/evening colleges as
the case may be.
As seen from the facts set out in the affidavit as well as the certificates produced by the petitioners in both the writ petitions they have
undergone law course and they have secured the degree certificates. It is also pointed out that the Bar Council of Tamil Nadu was satisfied with
such degree certificate and had admitted the petitioners to the Bar Council and enrolled them as Advocates, while such decision to admit the
members has been taken in exercise of powers conferred u/s 26of the Act.
In Bar Council of Bar Council of India and another Vs. Aparna Basu Mallick and others, , the Supreme Court had considered the scope of the
said provision and held thus:
Now u/s 7, one of the functions of the Bar Council of India is to recognise Universities whose degree in law shall be a qualification for
enrolment as an advocate and for that purpose to visit and inspect the Universities. This power of recognition of universities is conferred where the
degree of law of that University entitles the degree holder for enrolment as an advocate. u/s 24(1) (c) (iii) which is relevant for this purpose, a
person shall be qualified to be admitted as an advocate on a State Roll if he fulfils the conditions of study in law from any university in India which is
recognised by the Bar Council of India. Sub-section (3) of Section 24is an exception clause to sub-section (1) as it begins with a non-obstante
clause which entitled a person to be enrolled as an advocate under special rule made in that behalf. No such rule was relied upon as having been
made under sub-section (3) of Section 24. Section 49 (1 )(d) empowers the Bar Council of India to make rules which may prescribe the standards
of legal education to be observed by universities in India and the inspection of universities for that purpose. If the acquisition of a degree in law is
essential for being qualified to be admitted as an advocate on a State Roll. It is obvious that the Bar Council of India must have the authority to
prescribe the standards of legal education to be observed by Universities in the country. On a conjoint reading of these provisions of the Act with
Rule 1(1) (c) in Part IV of the Rules which prescribe the standards for legal education and recognition of degrees in law as well as admission as
advocates, it is difficult to understand how one can say that the said rule is inconsistent with any of the provisions of the Act. What Rule 1(1) (c)
requires is that the course of study in law must be completed by regular attendance at the requisite number of lectures, tutorials and moot courts in
a college recognised by a university. As pointed out earlier, this Court in Baldev Raj Sharma Vs. Bar Council of India and Others, pointed out that
there was a substantial difference between a course of studies pursued as a regular student and the course of studies pursued as a private
candidate. The policy underlying the relevant provisions of the Rules is to lay emphasis on regular attendance of the law classes. It is, therefore,
clear that a candidate desiring enrolment as an advocate must fulfil the conditions set out under the relevant clause of Section 24 read with Rule
1(1) (c) of the Rules.
In Baldev Raj Sharma Vs. Bar Council of India and Others, ), the Apex Court while considering the scope of the same statutory provisions
and Rule held thus: ""The Bar Council of India has framed Rules under the Advocates Act, 1961. Rule 1 (1)(c) of Part IV of the Bar Council of
India Rules, 1975 provides that except as provided in Section 24(1) (c) (iii-a) of the Advocates Act a degree in law obtained from any university
in the territory of India after March 12, 1967 shall not be recognised for purpose of Section 24(1) (c) (iii) of the Act unless the conditions specified
therein are fulfilled, including the condition"" that the course of study in law has been by regular attendance at the requisite number of lectures,
tutorials and moot courts in a college recognised by a university. ""These rules were replaced by a fresh set of rules in 1984 and the new Rule 1(1)
(c) is almost identical. The rule clearly requires that the course of study in law should have been by regular attendance for the requisite number of
lectures, tutorials and moot courts and practical training. The rule envisages that for the entire period of the law course there must be a regular
attendance of the student before he can satisfy the conditions necessary for enrolment as an advocate under the Advocates Act, 1961. The Rules
amplify what is intended in Section 24(1)(c) (iii) of the Act. The three years course of study envisaged by that sub-clause in the Act intends that the
three years course of study in law must be pursued by maintaining regular attendance."" In V. Sudeer Vs. Bar Council of India and Another, , their
Lordships of the Supreme Court had occasion to consider the validity of Rule providing for pre-enrolment training and apprenticeship and held that
such Rules are ultra vires rule making power of Bar Council of India available to it under the Advocates Act, 1961. While considering the scope of
Sections 17,23,29 and 33, the Apex Court held that all persons who are enrolled as Advocates in State Roll are entitled as of right to practise in
all Courts including the Supreme Court.
As obviously, the Bar Council of Tamil Nadu is satisfied with the qualifications possessed by the writ petitioners they have been admitted to the
Bar Council and they have been enrolled. Their names also continue to remain in the rolls of the Bar Council of Tamil Nadu. So long as their names
remain in the rolls of the Bar Council, the petitioners are entitled to practise. It has been rightly pointed out by the counsel for the petitioners that
Bar Council had not taken any action and it is the Bar Council of Tamil Nadu who is the competent authority, if at all, to take action against the
petitioners or to examine or reexamine the eligibility of the petitioners for being enrolled. Without expressing any opinion as to the eligibility or
whether the qualifications possessed by the petitioners, either the basic degree or law degree secured by them, satisfy the qualification required or
not, this Court is of the considered view so long as their names find place in the roll and the Bar Council whose attention had already been drawn
by the Secretary of the Bar Association had not taken any action, much less interim action, the petitioners are entitled to practise and the Secretary
of the Bar Association has neither the authority nor the jurisdiction to indicate or state by circular or notification to the effect that the two petitioners
are ineligible to be admitted to the Bar or ineligible to practise as Advocates.
At the risk of repetition, it has to be pointed out that the Bar Council of India had not taken any action nor Bar Council of Tamil Nadu had
taken any action. As seen from the counter affidavit filed by the Bar Council of Tamil Nadu, the Bar Council Tamil Nadu had taken up the issue
and the Bar Council of Tamil Nadu is yet to receive. The Bar Council of Tamil Nadu, if at all, is the competent authority to indicate action and
when the Secretary, Bar Association, Nagercoil and addressed a letter to the Bar Council of India or Bar Council of Tamil Nadu it is for the said
body to act and not at all for the Secretary, Bar Association or for the Bar Association, Nagercoil. They have no semblance of authority to go into
or decide the legality or validity of the admission of the petitioners as members or their continuance in the rolls of Bar Council. The said body has
no such authority or jurisdiction. None of the statutory provisions of the Advocates Act or the Rules framed therein confers such power on the
Nagercoil Bar Association or its Secretary or any other Bar Association, which is an Association of the legal practitioners of a particular town or
locality to decide the eligibility qualifications possessed by a Bar member for enrolment or admission into Council and the continuance of such
members as practitioners. Hence the first part of the communication, which is impugned is without authority and it has to be quashed.
It is true and it has to be pointed out also that such a letter from the Bar Association, Nagercoil or its Secretary is not only without jurisdiction
but also inconsequential and such letter will not take away the rights of the petitioners to practise so long as their names continue in the rolls of the
Bar Council. Hence Bar Association, Nagercoil or its Secretary nor its members could interfere with the right of the petitioners to practise as
Advocate whose name finds place in the rolls of the State Bar Council.
Hence the first part of the impugned communication of the Secretary, Nagercoil Bar Association is totally without authority and jurisdiction and
it is sufficient to hold that this part of the communication sent by the Secretary of the said Association is a nullity and neither the Secretary nor the
members of the Nagercoil Bar Association could interfere with the rights of the petitioners to practise so long as their names find place in the rolls
of the State Bar Council.
However, it is made clear that it is open to the said Bar Association, Nagercoil either to move the Bar Council of Tamil Nadu or the Bar
Council of India for appropriate action and it is also well open to the Bar Council of Tamil Nadu or the Bar Council of India to take suitable action
as the facts that may be placed before them warrant. It is open to those bodies to examine the eligibility or ineligibility of the petitioners being
enrolled or admitted or to continue as member of the State Council and it is open to the Bar Council of Tamil Nadu and the Bar Council of India to
take appropriate action.
As serious allegations have been made against the State Bar Council by the Members of the Bar Association of Nagercoil, this Court points
out that it is bounden duty of the Tamil Nadu Bar Council to examine such a complaint and take appropriate action expeditiously.
This Court further makes it clear that it is not deciding the eligibility or otherwise of the petitioners or as to the validity of the admission or as to
the validity of the names of the petitioner being continued in the rolls of the State Bar Council and only holds that so long as the petitioner''s name
finds place in the rolls of the said Council they are entitled to practice.
To this limited extent, both the writ petitions are allowed. It is further directed that with respect to the expulsion or removal or the directions
issued by the Bar Association as to the cessation of the membership of the petitioners from the said Bar Association, it is for the petitioners to take
appropriate action before the competent Civil Court and only to the limited extent indicated above, the writ petition is allowed.
In the result, this Court holds that the petitioners are entitled to practise in any court anywhere in India so long as their names find place in the
rolls of the State Bar Council and neither the Secretary nor the members of the Nagercoil Bar Association has the authority to obstruct or interfere
with the practise of the petitioners as members of the Bar. To this limited extent, there will be an injunction against the Secretary and members of
the Nagercoil Bar Association and they shall not interfere or obstruct or interfere with the rights of the writ petitioners to practise as Advocates so
long as their names continue to remain in the rolls of the State Bar Council. The parties shall bear their respective costs. Consequently, the
connected W.M.Ps are closed.