Bombay High Court: In the present case, the petitioner challenged the validity of Rules 2(iv)(a), 2(xii)(B) and the Proviso appended thereto, Rules 14, 16(2), 18(2), 19(ii), 19(iii) and 26(a) of the Rules of Legal Education, 2008 (‘the 2008 Rules’) on the ground that the same were void and ultra vires the power conferred under Section 49(1)(d) read with Section 7(1)(i) of the Advocates Act, 1961 (‘the 1961 Act’) and therefore, should be struck down. Further, the petitioner challenged the validity of the impugned notices dated 28-8-2018 and 19-9-2018 issued by BCI, on the ground that the same was ex-facie arbitrary and illegal and was dehors Sections 7(h), 7(i), and 49(d) of the 1961 Act and was violative of Articles 14 and 19(1)(g) of the Constitution.
The Division Bench of Alok Aradhe*, C.J., and M.S. Karnik, J., opined that the challenge made to the 2008 Rules as being ultra vires, the parent Act was without any basis, as under Section 49(1)(d) of the 1961 Act, BCI had the general rule making power and had power to frame rules to discharge its functions under the 1961 Act, one of them being to promote legal education and to lay down standards of such education. The Court held that Rules 2(iv)(a), 2(xii)(B) and the Proviso appended thereto Rules 14, 16(2), 18(2), 19(ii), 19(iii), and 26(a) of the 2008 Rules were intra vires Section 49(1)(d) read with Section 7(1)(i) of the 1961 Act. Further, the impugned notices dated 2-8-2018 and 19-9-2018 issued by BCI could not be termed as arbitrary or in violation of Articles 14 and 19(1)(g) of the Constitution.
Background
The petitioner was established in 2006 by Nathibai Damodar Thackersey Women’s University (‘SNDT University’) and imparted legal education. The petitioner received an e-mail on 28-8-2018 from BCI by which it was informed that in pursuance of the direction issued by the Chairman of BCI, a committee constituted by it would visit the institution/law school of the petitioner for the purpose of conducting inspection on 29-8-2018, 30-8-2018, and 31-8-2018. The petitioner, by communication dated 29-8-2018 informed BCI that it had no authority to visit and conduct inspection of law colleges under the provisions of the 1961 Act, as the same only provided for the inspection of the Universities and not the Law Colleges. Thereafter, BCI issued a show-cause notice dated 19-9-2018 by which the petitioner was informed as to why the degree of the University, for the law courses, should not be suspended and the college who was refusing to get itself inspected be also suspended. Hence, the petition was filed by the petitioner.
Analysis, Law, and Decision
The Court referred to Sections 7(1)(h), (i), (l), and (m) of the 1961 Act, and opined that the maintenance of standards of legal education was the paramount statutory duty of BCI. The Court opined that BCI was under an obligation to promote legal education and to lay down the standards of education in consultation with the Universities in India imparting such education and to perform all other functions conferred and to do all other things necessary for discharge of functions under the 1961 Act.
The Court relied on BCI v. Dayanand College of Law, (2007) 2 SCC 202, wherein the Supreme Court held that though BCI might not have been entrusted with the direct control of legal education, in the sense, in which the same was entrusted to University, yet BCI retained adequate power to control course of studies in law and power of inspection. It was further held that as an apex professional body, BCI was concerned with the standards of legal profession in the country and thus, concerned with the legal education in the country. The Court also relied on BCI v. Bonnie Foi Law College, (2023) 7 SCC 756, wherein the Supreme Court dealt with the scope and ambit of Sections 7(1)(h) and (m) of the 1961 Act and held that BCI’s prominent role was to provide for promotion of legal education and to lay down standards of education in consultation with Universities in India and State Bar Councils. It was further held that Section 7(1)(m) was in the nature of residuary clause having widest amplitude to all other things necessary to discharge of the said functions.
The Court referred to Section 24(1) of the 1961 Act and stated that the said provision provided that BCI might make rules for discharge of its functions under the 1961 Act and in particular such Rule might prescribe for matters mentioned in Sections 49(1)(a) to 49(1)(j). The power conferred on BCI to frame rules must be construed purposively in furtherance of the object of the 1961 Act, that is, discharging its functions under the 1961 Act.
The Court opined that from the conjoint reading of Sections 7(1)(h), (i), (l) and (m), it was evident that BCI was enjoined with duties to promote legal education and to lay down standards of such education in consultation with universities in India imparting such education and the State Bar Councils. Therefore, the power of inspection was a necessary concomitant to maintain the standards of education, thus, if BCI’s rule making power under Section 49(d) was given a restrictive meaning, then it would be contrary to the object and purpose of Sections 7(1)(h), (i), (l), and (m) of the 1961 Act, which was enacted with an object to empower BCI to promote legal education and to lay down the standards of such education.
The Court stated that the contention that Sections 7(1)(h), 1(1)(i), and 49(1)(d) of the 1961 Act did not indicate Parliament’s intention to confer power of inspection of a college on BCI, was misconceived. The Court opined that the challenge made to the 2008 Rules as being ultra vires, the parent Act was without any basis, as under Section 49(1)(d) of the 1961 Act, BCI had the general rule making power and had power to frame rules to discharge its functions under the 1961 Act, one of them being to promote legal education and to lay down standards of such education.
The Court stated that the 2008 Rules provided for minimum standards which were to be followed by the Universities and Colleges offering law courses and it also provided for inspection of centres of legal education by a team of committee as appointed by the Bar Council. Therefore, the petitioner could not claim any immunity from inspection by BCI.
The Court relied on Damji Valji Shah v. LIC, 1965 SCC OnLine SC 71 : (1965) 35 Comp Cas 755, wherein it was held that a prior general law might be affected by a subsequent particular or a special Act if subject matter of a particular Act prior to its enforcement was deemed governed by the general provisions of earlier Act. The Court opined that in such a case operation of a particular Act might have the effect of curtailing the operation of the prior general Act.
The Court opined that the University Grants Commission Act, 1956 (‘the 1956 Act’) was a prior general law whereas the 1961 Act and the Rules framed thereunder were later special law. The inspection of law colleges/universities was governed by the 1956 Act, prior to the enactment of the 1961 Act. Therefore, the operation of provisions of the general Act i.e., the 1956 Act must be curtailed in so far as it pertained to inspection of law colleges and universities.
The Court further opined that the 1961 Act and the 2008 Rules were special laws which governed the legal education in the country whereas, the Maharashtra Public Universities Act, 2016 (‘the 2016 Act’) governed a general law dealing with the Universities in the State of Maharashtra. The 2016 Act did not expressly repeal the provisions of the 1961 Act and the question of inconsistency of provisions of the 2016 Act with the 1961 Act did not arise. The Court stated that even if it was assumed that there was inconsistency between the provisions of the 2016 Act and the 1961 Act, the provisions of the 1961 Act would prevail as they had been enacted by the Parliament in exercise of powers under Entry 76 and 77 of List-I of Schedule VII to the Constitution. Therefore, the 1961 Act could be construed as an exception or qualification of the general Act i.e., the 2016 Act.
Thus, the Court held that Rules 2(iv)(a), 2(xii)(B) and the Proviso appended thereto Rules 14, 16(2), 18(2), 19(ii), 19(iii), and 26(a) of the 2008 Rules were intra vires Section 49(1)(d) read with Section 7(1)(i) of the 1961 Act. Further, the impugned notices dated 2-8-2018 and 19-9-2018 issued by BCI could not be termed as arbitrary or illegal or in violation of Articles 14 and 19(1)(g) of the Constitution.
[Nathibai Damodar Thackersey Women’s University Law School v. State of Maharashtra, 2025 SCC OnLine Bom 874, decided on 2-4-2025]
*Judgment authored by: Chief Justice Alok Aradhe
Advocates who appeared in this case :
For the Petitioner: Milind Sathe, Senior Advocate (Amicus Curiae) a/w Gaurav Shrivastav a/w Aditya Mhase — present; Nitin Chaudhary a/w Siddeshvar Gaikwad, Disha Vardhan i/by Sachin Chandan for petitioner.
For the Respondents: Jyoti Chavan, Addl. Govt. Pleader for Respondent 1; Shekhar Jagtap for Respondent 2-BCI; Yogendra Rajgor a/w Meghna Gowalani for Respondent 3.
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