The Gujarat high court has allowed an employee applicant hoping to enroll with the Bar Council as an advocate to continue with employment until she clears the All India Bar Examination (AIBE).
The petitioner, Twinkle Mangaonkar, moved the high court in 2019, after she received her degree in law and applied to enroll with the Bar Council, with a view to clear the All India Bar Council Examination, also submitting the necessary fee of Rs 16,600 at the time, while declaring that she was already employed.
However, the Bar Council of Gujarat (BCG), did not accept her application form on the ground of her existing employment, stating that the enrollment rules stipulate that one should not be employed elsewhere, either in full or part-time service or/and is not engaged in any trade, business or profession. The BCG asked the petitioner to resign to sit for the examination.
The principal question that arose was whether to strike down the Rules 1 and 2 of the Bar Council of Gujarat (Enrollment) Rules being violative of Article 14 of the Constitution or should uphold the validity by adopting the principle of ‘reading down’ or ‘reading into’ so as to make the rule effective and workable and ensure the attainment of the object of the rule.
Rules 1 and 2 of the Bar Council of Gujarat Rules prohibit a person who is otherwise qualified to be an advocate from being admitted as an advocate if s/he is employed and requires every application for enrollment to be accompanied by a declaration that a person is not employed.
The Division Bench of Chief Justice Vikram Nath and JB Pardiwalla read down the Bar Council of Gujarat Rules on the grounds that a person may be either in full or part-time service or employment or is engaged in any trade, business or profession, who otherwise is qualified to be admitted as an Advocate shall be admitted as an Advocate, however, the enrollment certificate of such a person shall be withheld with the Bar Council and shall lie in deposit with the Council until the concerned person makes a declaration that the circumstances mentioned in Rule 2 have ceased to exist and that he or she has started his/her practice.
The division bench stated, “it is too much to say that a person desirous of getting themselves enrolled as an advocate with the state Bar Council should be asked at its inception to give up any other vocation business or job and only thereafter he/she can be enrolled. The lady is in a helpless situation. Today if she gives up her job being a single mother and god forbid she is unable to clear the bar council exam, then she would be left without any means of livelihood.”
Therefore, the court directed the Bar Council of Gujarat as well as the Bar Council of India to act accordingly after applying the rules in consonance with what has been stated above and issue a provisional Sanad to the writ applicant so as to entitle her to appear in the Bar Council of India Exam.