GAURAV KUMAR V. UNION OF INDIA & ORS.
TABLE OF CONTENTS
- Background
- Issues
- Decision
BACKGROUND
Writ filed under Article 32 challenging the validity of the enrollment fees charged by the State Bar Councils (SBCs) as the fees charged by the SBCs at the time of admission of persons on State rolls are more than the enrolment fee prescribed under Section 24(1)(f) of the Advocates Act 1961.
Presently, the SBCs charge different fees from advocates at the time of enrolment. Most SBCs charge an enrolment fee in addition to other miscellaneous fees.
ISSUES
The issues raised were as follows:
a. Whether the enrolment fees charged by the SBCs are in contravention of Section 24(1)(f) of the Advocates Act;
b. Whether payment of other miscellaneous fees can be made a pre-condition for enrolment.
DECISION
The decision was given by Hon’ble CJI Dr D.Y. Chandrachud.
(A) Enrolment fees charged by the SBCs are in contravention of Section 24(1)(f) of the Advocates Act
The court observed that the enrolment fee and other miscellaneous fees are the only source of income available to the SBCs to perform their functions under the Advocates Act and implement welfare schemes for advocates. However, the imposition of the enrolment fee and other miscellaneous fees by the SBCs must be consistent with the Constitution and the scheme of the Advocates Act.
Section 49(1)(h) of the Advocates Act gives the Bar Council of India (BCI) the authority to establish rules for setting fees related to matters under the Advocates Act. In accordance with this provision, the BCI has established fees under Part VIII of the BCI Rules. These rules require State Bar Councils (SBCs) to charge fees within the limits specified in Part VIII. The BCI has set fees for various purposes, such as petitions contesting the election of one or more SBC members, complaints of professional misconduct under Section 35, and certificates confirming an advocate’s enrollment and continued presence on the roll. Based on the legislative framework, it appears that the SBCs and the BCI function as delegates of Parliament under the Advocates Act.
Section 24(1)(f) of the Advocates Act is a fiscal regulatory provision and must be interpreted strictly. By imposing additional fees at the time of enrollment, the State Bar Councils (SBCs) have created new substantive obligations that were not originally intended by the provisions of the Advocates Act. Any fees imposed by the SBCs must have a basis in the statute. The Advocates Act does not explicitly empower the SBCs to levy fees, except for the enrollment fee and stamp duty under Section 24(1)(f) at the time of admitting advocates to the State roll. The decision of the SBCs to charge miscellaneous fees goes against the legislative requirements of the Advocates Act. Since the Bar Council of India (BCI) oversees all the SBCs, it is the responsibility of the BCI to ensure that the SBCs strictly adhere to the requirements of the Advocates Act.
(B) Payment of other miscellaneous fees cannot be made a pre-condition for enrolment
The Bench also focused on the issues that (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.
Any miscellaneous fees collected from a candidate when they enroll are essentially a requirement for the enrollment process. Section 24(1) specifies the requirements for enrolling an advocate on State rolls. Section 24(1)(f) specifies the amount that can be charged by the State Bar Councils (SBCs) as an enrollment fee, and prohibits the SBCs and the Bar Council of India (BCI) from demanding any additional fees as a pre-condition to enrollment. Therefore, any extra fees cannot be collected from individuals at the time of enrollment, but must be collected from advocates after they are admitted to the State roll.
(C) Article 14
It was observed that 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 created entry barriers, especially for people from marginalized and economically weaker sections, to enter into the legal profession. Therefore, the current enrolment fee structure is arbitrary as it denies substantive equality.
(D) Article 19(1)(g)
Further, it was held that 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. Thus, the current enrolment fee structure charged by the SBCs is unreasonable and infringes Article 19(1)(g).
(E) Prospective Effect and not retrospective
The Hon’ble Apex Court also clarified that the result of this decision would have entitled advocates who have paid the excess enrolment fee to a refund from the SBCs. Since the SBCs have been levying the enrolment fees for a considerable duration and utilizing the collected amounts to carry out their day-to-day functioning, as a result, it declared that this judgment will have a prospective effect and not retrospective. Resultantly, the SBCs are not required to refund the excess enrolment fees collected before the date of this judgment.
