Aditya Marwah
in Administrative Law
Asked November 24, 2014

BCI banning lawyer from practing in SC

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Is the ban by BCI on lawyers with less than five years experience from practicing in the Supreme Court, constitutionally valid? Also, is the BCI allowed to make laws such as this?

Answer 1

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Aishwarya Dhakarey
The BCI is empowered to make rules under Section 15 of the Advocates Act, 1961.The newly introduced Rule 7 of the BCI rules, upon approval from the state bar council and enforcement by the Bar Council of India, would prohibit the advocates from practicing in the High Court until they have had two years of experience at the trial court. Moreover, practicing in Supreme Court would further require an experience of three years at the High Court. The rule could be criticized on the following grounds: The right to practice before all courts or tribunals is conferred under Section 30 of The Advocates Act, 1961 There is no time limit or restriction on the duration of experience put on this right. Secondly, this right can be said to emanate from the fundamental right of trade and profession as guaranteed by Article 19(1)(g) of the Indian Constitution. The restriction mentioned here is by way of a rule. In order to alter a provision granting such a right, needs to be in the form of an amendment.to the Indian Advocates Act, 1961 (which is the enabling or the principal statute) , because the right has been granted by a parliamentary legislation and cannot be taken away by a delegated legislation as is in this case. In the present matter, the rule can be challenged on the grounds that BCI has no power to. This is the danger of delegated legislation. Delegated legislations are those which are not made by the parliament but by some authorized authority. The Parliament has a lack of control over any delegated legislation and this can lead to inconsistencies in laws. Delegated legislation, therefore, has the potential to be used in ways which Parliament had not anticipated. A PIL was recently filed by a Chennai based lawyer challenging this rule in Madras High Court. References: http://indiankanoon.org/doc/756229/ 972 AIR 2452, 1973 SCR (2) 114 Patna University v. Amita Tiwari, (1997) 7 SCC 198 See http://www.legallyindia.com/201411225340/Bar-Bench-Litigation/bci-anti-youngster-rules- challenged-in-madras-hc-writ
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