Can A Person Enrol As Advocate Without Giving Up Other Job? Supreme Court To Examine BCI's Challenge Against Gujarat HC Judgment

The Supreme Court on Friday agreed to hear the special leave petition filed by the Bar Council of India challenging the November 2020 judgment of the Gujarat High Court which allowed persons with other employments, whether full-time or part-time, to enrol as Advocates without resigning from their jobs.

A bench comprising Justices Sanjay Kishan Kaul and MM Sundresh however turned down the prayer made by the BCI for stay of the High Court judgment.

The bench however agreed to consider the issue in detail, having regard to the "wider ramifications", and posted the same for hearing on January 25, 2022.  Senior Advocate KV Vishwanathan has been appointed as the amicus curiae in the matter to assist the Court.

"The view taken by the High Court cannot be faulted. Since the issue has wider ramification, the petition is filed by BCI, though the rule in question is with respect to Bar Council of Gujarat. We are inclined to examine the matter", the bench noted in the order.

Though SN Bhat, appearing for the BCI, requested for a stay of the High Court judgment, the bench declined.

"No, we'll not grant ex parte stay, we want to see what the ramification is", the bench responded.

The impugned judgment of the Gujarat High Court read down Rules 1 and 2 of the Bar Council of Gujarat (Enrollment) Rules which imposed a complete embargo on persons from other vocations from getting enrolled as an Advocate.  However, the High Court added that the enrolment certificate of such person will be withheld by the Bar Council and will lie in deposit in the Council until a declaration is made that the other job/vocation has been discontinued. In other words, to start actual practice as an advocate, the person has to give up the other job.

Hearing in Supreme Court

As the matter was taken, Justice Kaul observed, "The objection is that a person should not be carrying on a job and profession simultaneously. Somebody may have a license, he goes to a job, he suspends his license, if he resigns he can come back to the job. There is no impediment. He can suspend. Here is a person who says that let me take the bar exam. If I qualify and are entitled to be enrolled, I'll resign my job and come. You are saying resign first. Suppose if they don't qualify then they lose the job as well".

"There is a qualitative distinction in a member who is already admitted", the BCI's counsel said.

"The objective is a person carrying on a profession should not simultaneously hold a job", Justice Kail said.

"We had a rule earlier that some training has to be given", the BCI counsel pointed out.

"The point of the fact, let's not put obstructions on people becoming professionals. You have a bar exam and they have to take it. Isn't it so?", Justice Kaul asked. The BCI counsel replied "the apprehension is this, that it is difficult to monitor this".

The bench asked if the petitioner before the High Court took the bar exam.  The bench was told that she has cleared the exam and that the Bar Council of Gujarat has not challenged it.

A division bench of the High Court comprising Chief Justice Vikram Nath (since elevated to the Supreme Court) and Justice JB Pardiwala observed that it was too harsh a condition that a person has to give up her other job just to get enrolled.

"It is too much to say that a person desirous to get himself enrolled as an Advocate with the State Bar Council should be asked at its inception to give up any other vocation, business or job and only, thereafter, he can be enrolled on the roll of the State Bar Council", the High Court observed in the judgment.

"We read down Rules 1 and 2 respectively of the Bar Council of Gujarat (Enrollment) Rules so as to read that a person may be either in full or part-time service or employment or is engaged in any trade, business or profession, who otherwise is qualified to be admitted as an Advocate shall be admitted as an Advocate, however, the enrollment certificate of such a person shall be withheld with the Bar Council and shall lie in deposit with the Council until the concerned person makes a declaration that the circumstances mentioned in Rule 2 have ceased to exist and that he or she has started his/her practice",  the High Court observed.

The High Court delivered the judgment in a writ petition filed by a woman, a single mother, who wanted to get enrolled as an Advocate. She was aggrieved by the condition that the other job she is having must be discontinued to seek enrolment.

"The lady is in a helpless situation. Today, if she gives up her job being a single mother, and god forbid if she is unable to clear the All India Bar examination, then she would be left without any means of livelihood", the High Court said describing her situation.

Case : Bar Council of India versus Twinkle Rahul Mangoankar and others, SLP(c) 16000/2020.

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