Case study: Gaurav Kumar v. Union of India and connected cases.

By Anish Sinha 10 Minutes Read

Citation: WP (C) No. 352 of 2023

Date of Judgment: 30^th July, 2024

Court: Supreme Court of India

Bench: CJI DY Chandrachud, Justice JB Jariwala and Justice Manoj Misra

Facts

• Writ petition was filed against the union government, Bar Council of India and State Bar Councils for charging the exorbitant enrolment fees and declaring the amount taken as arbitrary, unreasonable, and illegal.
• Petitioner argued that Section 24(1)(f) of the Advocates Act, 1961 stipulating that to be admitted as an advocate, an applicant must pay enrolment fees of Rs. 600 to the State Bar Council and Rs.150 to the Bar Council of India. In addition to this, if the applicant belongs from Scheduled Caste or Scheduled Tribe, then the enrolment amount paid to the Bar Council of India (‘BCI’) is Rs. 25 and to the respective State Bar Council is Rs. 100. However, contrary to this, the State Bar Councils are charging exorbitant fees which vary in different States.

Judgment

The court held that the enrolment fee cannot exceed Rs.750 for advocates belonging to the general category and Rs.125 for advocates belonging to SC/ST categories.

Court reasoned on the ground of the standard link between the right to profession under Article 19(1)(g) and how it impacts the other fundamental rights- the right to dignity under Article 21 and the right to equality under Article 14 It stressed how having the ease of choosing one’s profession and earning a livelihood out of it ensured the individual’s dignity and equal standing in society.

“Dignity is crucial for substantive equality. The dignity of an individual encompasses the right to develop their potential to the fullest. The right to pursue a profession is one’s choice and earning, the right to livelihood is integral to the dignity of an individual. Charging exorbitant enrolment fees and miscellaneous fees as a precondition for enrolment creates a barrier into the entry of the legal profession.”

Court held that the Bar Council of India (BCI) and the state bar councils, which are authorized under the Advocates Act to enroll law graduates as lawyers, cannot override the legal provisions which have been enacted by Parliament.

Key legal issues discussed

1. Does Excessive Enrollment Create Financial Obstacles and Appear Unfair Under Article 14? Court Finds Bar Councils Accountable for a ‘Inclusive Bar’?

Yes

Court held that “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.”

The Court highlighted that the high enrollment fees imposed by the SBCs violated Article 14 by creating financial obstacles for lawyers from marginalized communities seeking to join the legal profession through state registration. The SBCs set the enrollment fees higher than the limits specified under Section 24(1)(f) of the Advocates Act, rendering them clearly unreasonable.

In accordance with law, Section 24(1)(f) of the Advocates Act of 1961 sets the enrollment fee at Rs. 600 for the State Bar Council and Rs. 150 for the Bar Council of India for general category advocates. For SC/ST category advocates, the fees are Rs. 100 and Rs. 25, respectively. A comprehensive chart detailing the state-wise fees charged by different bar councils is available here, showing that in some states, the enrollment fee can reach up to Rs. 40,000.

The Court emphasized that Bar Councils are responsible for ensuring that lawyers from various societal backgrounds are included. It also interpreted the Advocates Act’s intent as fostering bar inclusivity, which should not be undermined by arbitrary fee structures.

In this question Court referenced the case of Khoday Distilleries Ltd v. State of Karnataka[1], where it established the following principles for assessing delegated legislation: (a) the standard for arbitrary actions in executive decisions does not necessarily apply to delegated legislation; (b) delegated legislation can only be invalidated if it is manifestly arbitrary; (c) manifest arbitrariness is present if the legislation deviates from the statute; and (d) delegated legislation is also considered manifestly arbitrary if it violates Article 14.

2. Does the SBCs’ fee structure violate Article 19(1)(g)?

Yes, but with limitation and restriction

Court mentioned that “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). However, the right of citizens to practice law can be regulated and is not absolute.”

Here the Court noted that Section 30 of the Advocates Act 1961 grants advocates listed on state rolls the right to practice in all Indian courts. This right is both statutory under Section 30 and constitutionally protected under Article 19(1)(g).  However, this right is subject to reasonable restrictions as outlined in Article 19(6). As a result, the State can set certain qualifications or limitations for practicing law, provided they fall within the bounds of Article 19(6). Therefore, the right to practice law is not absolute.

Additionally, the bench observed that the fee structures set by the SBCs varied significantly, ranging from fifteen thousand to forty-two thousand rupees is mandatory for enrollment. In which court found no valid justification for these high fees. This policy of the SBCs was deemed a violation of Article 19(1)(g), as such steep fees effectively prevent aspiring lawyers from economically disadvantaged backgrounds from entering the profession.

Conclusion

Concluding the court also cleared on the validity of authority by referring to the rulings in Mohammad Yasin v. Town Area Committee, Jalalabad[2] and R M Seshadri v. District Magistrate[3] in order to emphasize that any imposition of licenses or fees by an authority must align with the legislative intent of the parent Act. The following principles were established:

• Fees Must Align with Legislative Intent: Any fees or charges levied by an authority should be consistent with the objectives and provisions outlined in the parent Act.
• Reasonable and Justifiable: Fees must be reasonable and justifiable in relation to the purpose they serve, ensuring they do not exceed what is necessary for the regulatory function.
• Avoidance of Arbitrary Charges: The imposition of fees should not be arbitrary or excessive, as it should adhere to the limits and framework prescribed by the parent Act.

[1] (1996) 10 SCC 304.

[2] (1952) 1 SCC 205.

[3] (1954) 2 SCC 320.

Anish Sinha