Exorbitant Enrolment Fees Charged By State Bar Councils Violate Of Right To Profession, Dignity And Equality: Supreme Court

The Supreme Court in a significant ruling today held that exorbitant enrollment fees charged by the State Bar Councils (SBCs) violate an aspiring lawyer's right to choose a profession and dignity. Compelling lawyers from marginalised sections to pay hefty enrollment fees strikes at the heart of principles of equality.

The bench led by CJI DY Chandrachud and Justices JB Pardiwala and Manoj Misra 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.

The Court observed the quintessential 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 of an 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."

The Court found that high enrolment fees create barriers to entering the legal profession, particularly for those from marginalized and economically weaker sections of society.

"The levy of exorbitant fees as a pre-condition to enrolment serves to denigrate the dignity of those who face social and economic barriers in the advancement of their legal careers. This effectively perpetuates systemic discrimination against persons from marginalized and economically weaker sections by undermining their equal participation in the legal profession. Therefore, the current enrolment fee structure charged by the SBCs is contrary to the principle of substantive equality."

Exorbitant Enrolment Creates Economic Barriers; Manifestly Arbitrary Under Article 14: Bench Holds Bar Councils Responsible For An 'Inclusive Bar'

The Court emphasized how the excessive enrollment fees set by the SBCs were violative of Article 14 as it created economic barriers for lawyers belonging to the marginalised sections who want to enter the legal profession by enlisting at the State rolls. The SBCs have quoted the enrollment fee to be beyond the prescribed limits under S. 24(1)(f) of the Advocates Act making it manifestly arbitrary.

"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 Advocates Act of 1961 under S. 24(1)(f) prescribes the enrollment fee payable to the State Bar Council as Rs. 600/- and Rs 150/- towards the Bar Council of India for advocates belonging to the general category. For advocates belonging to SC/ST categories, the amounts are Rs.100 and Rs.25 respectively. A detailed chart on the state-wise fee chargeable by different bar councils can be accessed here. In some States, the enrolment fee goes to the extent of Rs.40,000.

The Court highlighted how it is the responsibility of Bar Councils to ensure greater inclusivity of lawyers from diverse sections of society. It also interpreted the purpose of the Advocates Act to promote inclusivity of the bar which cannot be taken away by implementing arbitrary enrollment fee measures.

"The purpose of the Advocates Act of creating an inclusive Bar cannot be defeated by having exclusionary conditions which seek to create social and economic barriers. The Bar Councils have a responsibility in the public interest to ensure greater representation of persons from marginalized communities in the legal profession."

In holding so the bench relied on the decision of the Top Court in Ravinder Kumar Dhariwal v. Union of India, where it was held that ensuring equality in outcomes by different forms of affirmative action contributes to the larger aim of substantive equality.

Reference was also made to the decision in Khoday Distilleries Ltd v. State of Karnataka. In the said case, the Court established the principles for challenging delegated legislation: (a)Test of arbitrary action for executive actions doesn't necessarily apply to delegated legislation; (b) Delegated legislation can only be struck down if manifestly arbitrary; (c) Manifest arbitrariness occurs when not in conformity with the statute; (d) Delegated legislation is also manifestly arbitrary if it offends Article 14

"In Khoday Distilleries Ltd v. State of Karnataka, this Court laid down the following principles for challenging delegated legislation: (i) the test of arbitrary action which applies to executive actions does not necessarily apply to delegated legislation; (ii) a delegated legislation can be struck down only if it is manifestly arbitrary; and (iii) a delegated legislation is manifestly arbitrary if it is not in conformity with the statute or offends Article 14."

Applying the above test, the Court concluded that the SBC's policy to charge exorbitant fees was manifestly arbitrary.

"The decision of the SBCs to charge exorbitant fees also suffers from the vice of manifest arbitrariness."

SBCs Fee Structure Is Violative of Article 19(1)(g); Authorities Can Impose Fees Only As Per The Legislative Intent Of The Parent Act

The Court observed that under S. 30 of the Advocates Act 1961 the advocates listed on state rolls can practice in all Indian courts. This right is both statutory under Section 30 of the Advocates Act and fundamentally protected by Article 19(1)(g) of the Constitution.

This right under Article 19(6) is however subject to reasonable restrictions. Therefore the State can prescribe certain qualifications or limits for practicing law which are within the scope of Article 19(6). The right to practice law is therefore not absolute.

"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."

The bench noted the excessive variance of fee structures across the SBCs, charging in a range of Rupees fifteen thousand to Rupees forty-two thousand as a pre-condition to enrolment. The Court observed that there was no valid reason for the SCBs to charge such high fees. Such a policy of the SCBs is hit under Article 19(1)(g) as such high fees create an embargo for aspiring lawyers from poor backgrounds to join the profession.

"The excess enrolment fee imposed by the SBCs is without authority of law. Compounded with this there are no reasonable criteria behind the decision of the SBCs to charge such exorbitant amounts as enrolment fees. 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 of the society. Therefore, the current enrolment fee structure charged by the SBCs is unreasonable and infringes Article 19(1)(g)."

Court made reference to the decisions In Mohammad Yasin v. Town Area Committee, Jalalabad and R M Seshadri v. District Magistrate in concluding that any levy of licenses or fees by an authority has to be within the legislative intent of the Parental Act. The following principles were set out for the same:

"(i) the power of the authority to impose restrictions on the right under Article 19(1)(g) is not absolute and must be exercised in a reasonable manner; (ii) any fees or licences levied by the authorities must be valid and levied on the basis of the authority of law; and (iii) delegated legislation which is contrary to or beyond the scope of the legislative policy laid down by the parent legislation places an unreasonable restriction in violation of Article 19(1)(g)."

In Mohammad Yasin, the issue was to determine the validity of the bylaws framed and the scope of authority of the Town Area Committee in imposing licence fees on any person intending to sell in wholesale at any place in the town area. Justice SR Das herein held that the license fee in question affected the business owners in two ways (1) by taking away their property (money) and (2) by restricting their right to do business. It was observed that such a license fee violated Article 19(1)(g) and didn't fall under 'reasonable restrictions' as the authorities did not allow the business owners to run the business if fees were not paid.

In RM Seshadri, the Constitution bench held that the conditions imposed by the Government on the licensee for running each performance of a movie in the theatre was widely couched, vague and lacked clear instructions. The Court held it to be violative of Article 19(1)(g) as the conditions imposed harshly affected the cinema business.

Case Details : Gaurav Kumar v. Union of India W.P.(C) No. 352/2023 and connected cases.

Citation : 2024 LiveLaw (SC) 519

Click here to read Judgement