The stipulation of enrolment fees by the state Bar councils, other than what is prescribed under the Advocates Act, 1961, is in blatant violation of the right to equality and equal treatment before the law guaranteed to law students and graduates as enshrined in the Constitution, an open letter by All India Lawyers Association for Justice states.
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ALL India Lawyers' Association for Justice (AILAJ) has written an open letter to the chairperson of the Bar Council of India (BCI) urging a reduction in the 'prohibitively high' enrolment fees borne by young law graduates.
AILAJ is an organisation of lawyers, legal professionals and law students striving to protect the core tenets of India's Constitution, particularly liberty, equality, justice and fraternity.
The letter refers to a speech by the Chief Justice of India (CJI) Dr D.Y. Chandrachud, where he stressed upon the need for democratisation of the legal progression by "removing feudalistic remnants" like monetary barriers and by providing equal opportunities to first-generation lawyers.
In the public programme, the CJI had specifically addressed his serious concerns over the surging enrolment fees. He had opined: "It is very costly to enrol [as an advocate]. The BCI should relook at what they charge for enrolment."
According to the letter, the legal profession is an integral part of the Indian justice system. It has a vital role in upholding the rule of law and the pursuit of justice. Despite its importance, the legal profession is not immune to issues of inequality and discrimination that exist in our society.
The open letter by AILAJ states: "There are serious hurdles faced by members of historically marginalised communities, particularly Dalits and Adivasis, and women, as also those from minority and economically weaker sections, to enter, progress and succeed in this profession. One such hurdle is the prohibitively expensive enrolment fees imposed by the state Bar councils."
For instance, as per the letter, the Karnataka Bar Council's enrolment fee for a general candidate is ₹15,900. For candidates belonging to Scheduled Caste and Scheduled Tribe category, the enrolment fee is only marginally lower at ₹12,900/-.
"The high enrolment fee imposes a significant financial burden on law graduates from disadvantaged sections of the society and their families who already face economic hardship and have access to limited opportunities," the letter avers.
The letter states that the BCI and state Bar councils have a duty to promote diversity by taking proactive steps in encouraging students, especially those belonging to disadvantaged sections of the society and wanting to pursue legal education and practice.
This can only be achieved by substantively reducing the exorbitant enrolment fees, the letter asserts.
Recently, a five-judge Constitution Bench of the Supreme Court in Bar Council of India versus Bonnie Foi Law College (2023), in the context of hefty enrolment fees, observed: "We also have one caveat arising from the plea that different state Bar councils are charging different fees for enrolment. This is something which needs the attention of the Bar Council of India, which is not devoid of the powers to see that a uniform pattern is observed and the fee does not become oppressive at the threshold of young students joining the Bar."
Subsequent to this judgment, a public interest litigation in Pardhuman Garg versus Bar Council of India and Another (2023) was filed in the High Court of Punjab and Haryana challenging the enrolment fees of the Bar Council of Punjab and Haryana based on the Bonnie Foi Law College judgment of the Supreme Court.
The enrolment fee of the Bar Council of Punjab and Haryana for a general candidate is ₹16,400.
The petition was disposed of by the high court after the BCI submitted that it would be taking necessary steps pursuant to the Supreme Court's Order.
The BCI stated: "[We] would be taking up the necessary steps pursuant to the directions of the Supreme Court and appropriate decision in the matter shall be taken expeditiously and in view of the judgment of Supreme Court in Bar Council of India."
In another case before the Kerala High Court in The Bar Council of Kerala versus Akshai M. Sivan (2023), an interim Order was passed in February this year on the issue of enrolment fees. The Order states: "There will be a direction to the respondent Bar council to receive applications from the petitioners with a fee of ₹750."
The Bar Council of Kerala appealed against the interim Order. On March 16, the Bar Council of Kerala informed the division Bench of the high court that it was going to convene a meeting for fixing a uniform fee for enrolment applied to all Bar councils in India. Till the appeal is disposed of, the Bar Council of Kerala accepted that it would charge the minimum prescribed fee of ₹750.
Pursuant to this, in June, the division Bench of the Kerala High Court directed the Bar Council of Kerala to collect only ₹750 as enrolment fee from law graduates until BCI considers a uniform fee structure as directed by the Supreme Court.
Another petition has been filed before the Supreme Court in Gaurav Kumar versus Union of India (2023) challenging the different enrolment fees being charged by different state Bar councils as exorbitant. The court issued notices to the BCI and state Bar councils in April on this matter.
The petition mentions that state Bar councils like the Odisha Bar Council and Bar Council of Gujarat charge enrolment fees as high as ₹42,100 and ₹25,000 respectively.
The matter was taken up in May, and the Supreme Court has directed the state Bar councils which have not filed their replies already to do so within a period of four weeks, failing which, their right to reply shall stand forfeited and the petition shall proceed on the basis that they have nothing further to add.
As per the letter, during the hearing, the Supreme Court orally remarked that the BCI has to intervene because the state Bar councils are charging huge amounts for enrolment. The court pondered over how a Dalit student or a student from rural background could afford to pay the humongous enrolment fee.
According to the letter, the law governing 'admission and enrolment of advocates' is contained in Chapter III of the Advocates Act, 1961 in Sections 16 to 28. As per Section 24(1)(f), the mandated enrolment fee prescribed by the Act is ₹750.
The prescribed fee can only be altered by way of amendment to the Act as laid down by the High Court of Bombay in Bar Council of Maharashtra versus Union of India (2002).
In this case, the constitutional validity of Section 24(1)(f) of the Advocates Act, 1961 was challenged.
The high court observed: "While making a provision about the qualification of the persons who may be admitted as an advocate on state roll, one of the conditions prescribed under clause (f) of sub-Section (1) of Section 24 is that such person who has applied for their admission as an advocate must have paid an enrolment fee payable to the state Bar council.
"Though initially under clause (f) of sub-Section (1) of Section 24, the enrolment fee payable by the persons seeking admission to the Bar council was fixed at ₹250, by way of amendment by Act no. 70 of 1993, such enrolment fee payable to the state Bar council was increased from ₹250 to ₹600.
"It would be thus seen that Parliament had been alive to this problem and by Act no. 70 of 1993, the enrolment fee has been almost increased by more than double. We are afraid, if we accept the submission of the Bar council that the provision of Section 24(1)(f) is unconstitutional, the net result would be that Bar council shall not be entitled to recover the enrolment fee at all.
"As it is, we do not find any constitutional vice in fixing the enrolment fee to the extent it has been fixed by Parliament. If the Bar council finds that the sum of ₹600 now fixed under Clause (f) of sub-Section (1) of Section 24 is inadequate, the remedy of the Bar Council lies elsewhere. The Bar council may take up the matter with the Central government for taking appropriate steps in the amendment of the concerned provisions."
A division Bench of the Kerala High Court in Bar Council of Kerala versus T. Koshy and Others (2017) also held as follows: "Evidently, therefore, the enrolment fee payable by an applicant for enrolment with a Bar council of the state has been statutorily prescribed by the legislature in exercise of its power under Section 24(1)(f) of the Advocates Act."
The Bench further held: "Thus the surviving question is whether the fixation of a special fee is encompassed by the conditions which the Bar council is entitled to prescribe in the Rules made by it in view of Section 24(1)(e) and Section 28(2)(d).
"As we have already seen and as found by the learned single judge, in Section 24(1)(f), the legislature itself has prescribed the enrolment fee payable by a candidate applying for enrolment with a Bar council of a state. Once the legislature has prescribed an enrolment fee, another fee, be it called a special fee or anything else, can legitimately be prescribed by a state Bar council or any other authority only if there is an express legislative sanction therefore.
"In so far as Section 24(1)(e) is concerned, all that it empowers the state Bar council is to specify in the Rules made by it under chapter III of the Act the other conditions that a candidate should fulfil for enrolment. That rule-making power also finds reflection in Section 28(2)(d) which provides for the power of the Bar council to make Rules prescribing the conditions subject to which a person could be admitted as an advocate on its rolls.
"These provisions, in our view, only deal with the eligibility conditions and those conditions do not empower the Bar council to prescribe any fee for the enrolment, either in the form of an enrolment fee or a special fee. Therefore, the prescription of special fee as done by the Bar Council of Kerala is totally ultra vires its powers as conferred under the Advocates Act, 1961."
A special leave petition challenging this Order was dismissed by the Supreme Court in 2019.
The letter notes that when the law prescribes enrolment fees of ₹750, the state Bar councils do not have the necessary competence to mandate enrolment fees.
"Any Rules made by the state Bar councils arrogating to itself the authority to stipulate enrolment fees other than which is prescribed in Section 24(1)(f) is beyond the scope of its rule-making powers," the letter avers.
Thus, the AILAJ has requested the BCI to take immediate steps to ensure that all state Bar councils limit the enrolment fees to ₹750 until the court takes a final decision on the matter.