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MP HC Observed BCI Has The Power To Frame Further Rules Laying Down Conditions Before Permitting A Person To Practice As An Advocate


MP HC Observed BCI Has The Power To Frame Further Rules Laying Down Conditions Before Permitting A Person To Practice As An Advocate

WHAT IS THE BACKGROUND?

• Recently, the Madhya Pradesh High judge stated that a lawyer who is admitted under Section 24 of the Advocates Act, 1961, could be subject to additional requirements until he is eligible to practise as a lawyer in court. Sanjay Yadav and Justice Rajeev Kumar Dubey, the Bench of Acting Chief Justice, heard writ petitions, contested Rule 9 of All India Bar Examination Rules, 2010, and prayed that Rule 9 should be declared ultra vires.

WHAT WAS THE MATTER BEFORE THE COURT?

• At the instance of Advocates provisionally enrolled with the Madhya Pradesh State Bar Council, writ petitions were directed. They prayed before the Court, apart from questioning Rule 9 of All India Bar Examination Rules, 2010, that direction is given to the Bar Council of India to announce the outcome of the examination carried out on 15.09.2019 by the Centre of Jabalpur and Bhopal.

• Furthermore, the Madhya Pradesh State Bar Council was advised to increase the duration of provisional enrolment. Rule 9 of the All India Bar Examination Rules, 2010, First of all, it should be noted that Rules 9 to 11 of the All India Bar Examination Rules, 2010 were brought into force by Resolution No.73/2010. The rules were adopted under Section 49(1)(a) of the Act of 1961 in Part VI, Chapter III of the Bar Council of India Rules.

• The Bar Council of India had decided that having the authority to lay down conditions subject to which advocates are entitled to practise the profession of law under the Advocates Act, 1961 is to perform an All India Bar Examination, entitling the advocate to a Certificate of Practice that will allow him/her to practise the profession of law under the Advocates Act, 1961.

WHAT DOES RULE 9 OFALL INDIA BAR EXAMINATION RULES, 2010 MANDATES?

• This provision makes it obligatory for advocates enrolling in BCI under Section 24 of the 1961 Act (from the academic year 2009-2010) to pass AIBE, and they are eligible to practise in a court of law only after passing the said exam.

• Now, in the writ petitions brought before the MP HC, this Rule 9 was questioned because it is beyond the authority of the Bar Council of India to frame such a rule that appears to deprive advocates who are licenced under Section 24 of the Act of 1961. Importantly, it was recommended that the qualifying conditions for post-enrolment are outside Sections 24 and 30 of the 1961 Act.

WHAT WERE THE OBSERVATIONS MADE BY THE COURT?

• The Court noted that Section 24 of the 1961 Advocates Act provides for people who could be admitted on a State roll as advocates. However, the Court also observed that other sections of the Act of 1961 (for example, Section 49 of the Act) were rendered subject to the right of the Bar Council constituted under Section 24.

• The Court observed that, while, on the one hand, Section 30 of the Act of 1961 provides for the right of advocates to practise, on the other hand, Section 49 grants the Bar Council of India the general power to lay down rules under the Act of 1961 to discharge its functions.

• Now, if we follow Section 49 of the 1961 Act, we can appreciate the fact that it provides for the Bar Council of India to make rules under this Act to discharge its duties Secondly, Section 49(1)(a) of the 1961 Act empowers the Bar Council of India to lay down the conditions under which a lawyer has the right to practise and the circumstances under which a person is entitled to practise.

• Rule 9 of All India Bar Examination Rules 2010 came into being under the authority vested in the Bar Council of India under Section 49(1)(a) of the Act of 1961. The Court quoted the observations made by the Supreme Court in the case of V. Sudeer vs Bar Council of India, (1999) 3 SCC 176: 10/28/2020, to further explain the matter.

• A simple look at the aforementioned clause [Section 49(1)(ah)] reveals that it grants the Bar Council of India the rule-making power to recommend conditions in which an advocate has the right to practise and the circumstances in which a person is deemed to be a lawyer in a case. Thus, it is apparent that once a person has been licenced as a lawyer under the Act,If the Bar Council of India tries to enforce certain restrictions on an enrolled lawyer, his freedom to practise can be made subject to such restrictions. In other words, under Section 49(1)(a), the rule-making authority deals with a condition that is post-enrolment an advocate.

• In this sense, the Court observed that it was appropriate to test Rule 9 of the All India Bar Review Rules, 2010 on the anvil of the above review, the same cannot be said to be ultra vires Sections 24 and 30 of the Advocates Act, 1961 as the Court will excuse intervention. As a result, a claim to the legitimacy of Rule 9 has been negated. Also, the Court noted that owing to the mass copying, the test at the centre of Jabalpur and Bhopal was cancelled. Given this, as the test stand has been cancelled, no guidelines can be given for announcing the result. Nevertheless, the Court allowed the petitioners the right to file an acceptable application with the Bar Council of India for a new examination.

WHAT WAS COURTS’ LAST REMARK?

• The Court summarized by stating," It is for the Bar Council of India to take the decision. In the meantime, the petitioners are still free to request an extension of the provisional registration in these factual circumstances before the Madhya Pradesh State Bar Council. We do not doubt that the representation thereby led will be critically resolved by the Indian Bar Council and Madhya Pradesh State Bar Council.

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