Supreme Court Dismisses Plea Challenging BCI's Upper-Age Limit For LLB Admission As Violative Of Competition Act

'(e) to promote and support law reform; (h) to promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils; (i) to recognise Universities whose degree in law shall be a qualification for enrolment as an advocate and for that purpose to visit and inspect Universities 3 or cause the State Bar Councils to visit and inspect Universities in accordance with such directions as it may give in this behalf; (ia) to conduct seminars and organise talks on legal topics by eminent jurists and publish journals and papers of legal interest; (l) to perform all other functions conferred on it by or under this Act; (m) to do all other things necessary for discharging the aforesaid functions'. That apart, Section 49 of the Advocates Act, 1961 under the caption 'General power of the Bar Council of India to make rules' confers power on the Bar Council of India to make rules for discharging its functions under this Act. Undoubtedly, the definition of 'enterprise' is very wide and the definition does not only cover those institutions connected with activities pertaining to goods but also covers activities relating to provisions of 'services' of any kind, which gives a very broad connotation to the range of activities that can be covered in the definition of the 'services'. In order that any entity to come within the meaning of 'enterprise' as per Section 2(h) of the Competition Act, 2002 that it is or has been engaged in any 'activity' of the nature defined therein. Moreover, the activities mentioned in the Section 2(h) 'enterprise' of the Competition Act, 2002 have to be 'Economic' and commercial in character. Also that the words employed in preceding the words 'any activity' reflect not only regularity and continuing of activities made mention of in the Section", observed the NCLAT.

The NCLAT concluded, "In view of the above, it is crystalline clear that the Second Respondent/ 'Bar Council of India'/ Statutory Body has its primordial role to perform its duties and hence, this 'Tribunal' without any haziness holds that the Second Respondent/ 'Bar Council of India' is not an 'enterprise' having any economic and commercial activity. It is relevantly pointed out that the 'Bar Council of India' is concerned with a standards of the legal profession and equipping those who seek entry into such profession with the relevant knowledge and skills as per decision of the Hon'ble Supreme Court in the 'Bar Council of India' Vs. 'Board of Management', Dayanand College of Law (reported in 2007) 2 SCC page 202. As such, the 'Bar Council of India' is the exclusive Rule making Authority to set standards of legal education. In the light of the foregoing(s), taking into account of the averments made by the Appellant/ Informant in Format No.1 (for filing information) in Case No.50 of 2020 on the file of the First Respondent/ Competition Commission of India are not of any economic and commercial/business activity and further that keeping in mind yet another fact that the Second Respondent/ 'Bar Council of India'/ Statutory Body, which is to perform its role as a Regulatory one, cannot be said by any stretch of imagination that the ingredients of Section 4 of the Competition Act, 2002 'abuse of dominant position' are attracted in the present case, with a view to consider the same, as opined by this Tribunal. To put it succinctly, the view taken by the First Respondent/ Competition Commission of India in the impugned order dated 20.01.2021 in Case No.50 of 2020 stating that there existed no prima facie case as per Section 4 of the Competition Commission Act, 2002, not granting any interim relief as per Section 33 of the Act and ultimately rejecting the case are free from any legal flaws. Consequently, the 'Appeal' is devoid of merits."

4. "The informant states that he learnt about Clause 28 of Schedule III, Rule 11 to Part IV – Rules of Legal Education, 2008, a part of Bar Council of India Rules enacted under the Advocates Act, 1961 (hereinafter, 'Clause 28'), according to which the candidates belongings to General category who have attained the age of more than 30 years, are barred from pursuing legal education. The BCI has allegedly imposed maximum age restriction upon the new entrants to enter into the legal education and thus, created indirect barriers to the new entrants in the profession of legal service. The impugned Clause 28 has been incorporated by the BIC in contravention of Section 4 of the Act by 'misusing its dominant position'. By having done so, the BCI has also allegedly indulged in colourable exercise of power.

5. The Informant has further alleged that the members of the BIC, by way of aforementioned Clause 28, conspired to reduce the competition to its electors and created indirect barriers in the profession of legal service. He has also alleged that the members of the BCI who are managing the affairs of the BCI are misusing the dominant position enjoyed by the BCI in controlling the legal education in India.

6. Based on the above, the Informant has prayed before the Commission to declare the impugned Clause 28 as illegal and void ab initio and impose maximum penalty on the BCI for the violation of Section 4 of the Act and indulging in colourable exercise of power.

10. The Commission notes that the Informant has alleged contravention of the provisions of Section 4 of the Act, primarily, against the BCI. However, in order to appreciate the facts in the matter, it is imperative to examine the status of the BCI as an enterprise within the contours of the provisions of Section 2(h) of the Act before proceeding further with regard to the allegations raised in the information.

11. Thus, the primary question which falls for consideration is that whether BIC is an 'enterprise' within the meaning of Section 2(h) of the Act. The term 'enterprise' has been defined under Section 2(h) of the Act, inter alia, as a person or a department of the Government, engaged in any activity relating to provisions of any kind of services.

12. In the present matter, the Commission notes that the BCI is a statutory body established under Section 4 of the Advocates Act, 1961. Section 7 of the said Act lays down the functions of the BCI which includes promotion of legal education in India and to lay down standards of such education in consultation with the Universities in India and the State Bar councils. Further, Section 49 of the Advocates Act, 1961 empowers the BCI to make rules for discharging its functions under the said Act such as prescribing qualifications and disqualifications for membership of a Bar Council, minimum qualification required for admission to a course of degree in law in any recognized university, prescribing the standards of legal education for the universities in India, etc. Thus, it is noted that the BCI appears to carry out functions which are regulatory in nature in respect of the legal profession.

13. It is noted that in Case No.39 of 2014, In re: Dilip Modwil and Insurance Regulatory and Development Authority (IRDA) (Now, IRDA is known as Insurance Regulatory and Development Authority of India (IRDA), decided on 12.09.2014, the Commission had the occasion to examine the status of IRDAI as an 'enterprise' under the Act. The Commission had observed that any entity can qualify within the definition of the term 'enterprise' if it is engaged in any activity which is relatable to the economic and commercial activities specified therein. It was further observed that regulatory functions discharged by a body are not per se amenable to the jurisdiction of the Commission.

14. In the present matter, when the BCI appears to be discharging its regulatory functions, it cannot be said to be an 'enterprise' within the meaning of Section 2(h) of the Act and consequently, the allegation made in relation to discharge of such functions which appears to be non-economic in nature, may not merit an examination within the provisions of Section 4 of the Act."