Gaurav Kumar v. Union of India, WP {C} No. 352 of 2023

Author: Omkar Abhijit Thosar, Advocate Balasaheb Apte College of Law, Mumbai

Introduction

LLB is a professional course after which one either deep dives into research by pursuing higher studies in the form of LLM and PhD thereafter or one desires to step into the world of litigation. The 3 year LLB course is done by working professionals who wish to upgrade their career by obtaining a law degree or wish to switch their domain to legal post the completion of the course which may be inter company transfer in the legal department or total switch to litigation. The 3 year LLB course is also done by students who have completed their graduation in a different field altogether like science or commerce (B.sc/B.com) or a more aligned field like arts (B.A.). The 5 year LLB integrated course is mainly done by students after clearing their 12th standard and the advantage of this course is that they save one previous year as they complete 2 degrees in the span of 5 years unlike 3 yr course students who take 6 years to complete 2 degrees.

It must be noted that comparatively, the 5 year course students are more inclined towards the field of litigation rather than the 3 year course students. The reason being that the 5 year course students spend much more time learning the legal subjects and also have a considerable amount of time to explore different fields of litigation through internships, unlike 3 year course students. The 3 year course students already have a baggage of their study methodology while pursuing graduation and they ought to unlearn their study techniques and learn new techniques which are relevant and useful in order to study law. Thus, they do not have enough time to explore different fields of litigation and must stick to the field in which they get the internship and continue pursuing work in that particular field itself until their course is completed. And as far as working professionals are concerned they are invested completely in their ongoing job and hence they simply focus on their studies and give the semester exams as and when they are scheduled.

In the case herein, the issue is whether the state bar councils can charge enrollment fees which are over and above the threshold of fees/fee structure prescribed by the concerned act.

It must be observed that generally the students who do internships during their course do not earn much stipend for the work performed by them in the course of internship. Hence the question arises that are the students upon becoming law graduates financially capable of paying the high enrollment fees. If the income of the students is the only parameter to be considered then the answer is no since the income earned by most students proves to be insufficient for paying the requisite enrollment fees. It must also be noted that for the students belonging to economically weaker sections of the society, their parents would be reluctant to pay for the hefty enrollment fees after spending a considerable amount of money on their education till date.

Facts of the case:

Petitioner: Gaurav Kumar

Respondents: Union of India and Ors.

Facts:

In order to practice in a court of law, enrollment in a state bar council is mandatory. The state bar councils charge enrollment fees from law graduates which must be paid by them in order to be eligible to practice in the court of law. The Advocates Act,1961 is the governing legislation for the functioning of state bar councils.

A writ petition was filed in the Supreme Court of India by the petitioner in order to contest the hefty enrollment fees levied by the state bar councils. The writ petition was filed as per the Article 32 of the Indian Constitution which authorizes the citizens to go to the Supreme Court of India for imposing their fundamental rights. The established fee structure as far as enrollment fees are concerned is 600 Rs. to the State Bar Council and 150 Rs. to the Bar Council of India which aggregates to 750 Rs. As far as the SC/ST candidates are concerned, the enrollment fee structure for them is different wherein the aggregate fees are 125 Rs. the breakup for which is 100 Rs. to the State Bar Council and 25 Rs. to Bar Council of India.

The contention of the petitioner was that the State Bar Council is charging hefty enrollment fees from the law graduates with the lower limit being 10,000 Rs and the higher limit amounting to 50,000 Rs. which is a gross infringement of the enrollment fee structure provided as per the provisions of the Advocates Act,1961.

Legal issues

Whether the State Bar Councils are authorized to charge such hefty enrollment fees.

Court’s decision

The court held that the State Bar Councils charging such hefty enrollment fees which exceed the enrollment fee structure provided as per the provisions of the Advocates Act,1961 is not permissible. The court further held that charging such hefty enrollment fees from law graduates willing to enroll in the State Bar Councils amounts to infringement of Art 14 and Art 19 of the Constitution.

The court further held that the State Bar Councils cannot charge any kind of additional fees which are over and above the enrollment fee structure provided as per the provisions of the Advocates Act,1961. The court concluded its judgment by stating that the State Bar Councils are thereby not obligated to refund the excess fees collected from law graduates under some type of additional fees prior to the pronouncement of this judgement. Therefore, the effect of this judgement is futuristic.

Legal Reasoning

Infringement of Right to Equality under Art 14

The charging of hefty enrollment fees by the State Bar Councils is an absolute infringement of the Right to Equality enshrined under Art 14 since this action by the State Bar Councils is arbitrary and the outcome is that the economically weaker sections of the society are subject to absolute exploitation and their right to attain equal status as the other sections of the society despite their financial difficulties is totally violated.

Infringement of Right to practice profession under Art 19

Since paying enrollment fees is a prerequisite that must be fulfilled in order to be enrolled in the State Bar Councils for gaining the authority to practice in a court of law, charging hefty enrollment fees amounts to create a financial barrier for the law graduates to practice the profession of their choice and therefore this is an absolute infringement of the fundamental right enshrined under Art 19.

Impact of the case

This case sets an important legal precedent that when extreme arbitrariness is exercised by the Institutions and the aggrieved persons approach the court, then the court will ensure that such arbitrariness is curtailed and the grievances of the aggrieved persons are totally resolved.

Personal Analysis

The judgment pronounced by the court takes into account all the relevant facets governing this case and sound reasoning is given by the court for its decision.

However, the one point which does not seem to add up is the futuristic effect of the judgement. The judgement is given from the point of view of protecting the interests of law graduates for practicing in the courts and protecting the economically weaker sections of the society and therefore the judgement should have been retrospective which would have resulted in the State Bar Councils being obligated to return all the excess money taken by them in the name of additional fees and thereby aggrieved persons who have suffered due to the actions of the State Bar Councils would have been greatly benefited.

Conclusion

The case highlights the importance of non arbitrary governance of institutions and promotes the welfare of the persons affiliated with such institutions. The case seeks to prevent such instances of persons getting affected due to the arbitrariness exercised by the institutions. The case also seeks to put an end to tyrannical culture governing the functioning of the institutions by not allowing the State Bar Councils to charge such hefty enrollment fees.