“I am not afraid of storms, for I am learning to sail my ship.”
“The basic expectation in a rule of law society is that holders of public power and authority must be able to publicly justify their action as legally valid and socially wise and just. Accountability of the holders of public power for the ruled is thus the focal point of this formulation.”
– Prof. Upendra Baxi
A septuagenarian desirous of studying law and denied admission to pursue a three year LLB course has challenged the Bar Council of India (BCI) rules prescribing an upper age limit of 20 years for 5 year integrated law degree and 30 years for a 3 year LLB course. To this effect, the 77-year old woman, Rajkumari Tyagi has moved to Supreme Court with a plea to intervene in a case already pending in the matter, Rishab Duggal vs. Bar Council of India, Writ Petition (Civil) No. 1023 of 2016. The court had granted stay on BCI’s move of age bar.
The BCI through its hegemony is imposing unreasonable restrictions of citizens’ right to higher education besides being their basic human right. LLB education unlike engineering and medical profession is different in nature. It is called practice if adopted as profession, otherwise it increases the knowledge of the person about various laws of the country and about his rights and duties as there is a famous phrase, “Ignorance of law is no excuse”.
However, when a person tries to attain knowledge to eradicate ignorance, he is restrained. It makes no logic. During the transition period, National Adult Education Programme (NAEP) was conceived in India. On October 2, 1978, Government of India announced NAEP. Whereas, that programme too was half-baked as it did not talk about the higher education and the age cap of 15-35 years was imposed. As such, literacy has to carry the holistic approach. Literacy cannot be described just as the process of learning the skills of reading, writing but to liberate a person from the darkness of ignorance. There is no end to education. The whole of life, from the moment you are born to the moment you die, there is a process of learning.
Rajkumari Tyagi in her plea says that she had dealt with legal complications without having to resort to a lawyer at every given point when handling the will or identification of records. The petitioner claims that the fresh rules of BCI violate Article 14 (equality), 19(1)(g)(Right to practice any profession or to carry on any occupation, trade or business) and 21(Protection of life and personal liberty) of the Constitution of India.
The petitioner has contended, “It has been laid down by the Supreme Court that Right to Life under Article 21 of the Constitution, is not limited to mere ‘animalistic existence’ but also includes right to live with dignity which includes facilities for reading and writing and right to receive instructions in a course/medium of one’s choice.” She has prayed to the court to declare that the age bar set as requirement for admission in the course to be unconstitutional.
The imposition of the age to get admission in a college is violative of Article 14, as it provides an exception in the case where classification among people is reasonable. The test to establish the ‘reasonability of the classification’, is based on some intelligible differentia and there should be a reasonable connection between the act of classification and the objective required to be achieved. As such, the requirement of age restriction for law courses appears to be an unreasonable classification.
The phenomenon of age bar is violative of Article 19 (1) (g), which provides for the fundamental right of the citizens to practice any profession as the age bar imposed on the admission makes it impossible for the people above the prescribed age to practice law contradicting the right guaranteed in Article 19 (1) (g).
The fixation of age bar is also violative of Article 21, which provides ‘right to life’. In the case of Unni Krishna vs. State of A.P; the apex court ruled that the ‘right to education’ flows from right to life, guaranteed in Article 21, as education has transcended importance in one’s life.
Article 13 of the Constitution mentions that any law which is inconsistent with the fundamental rights provided in the Constitution of India should be held null and void.
In addition to the above, right to education has been embodied in International Covenants. Article 26 of the Declaration of Human rights (UDHR) provides for right to education for every citizen. It declared that primary education shall be free and compulsory; whereas, higher education shall be equally accessible to all on merit.
Lawyers Update visited the office of the Bar Council of India, where the Chairman Mannan Kumar and Secretary Srimanto Sen, were not available for comments. Assistant Secretary Nalini Raj Chaturvedi in his brief statement said that the BCI is supposed to set standards for quality education. With the view, BCI felt necessary to fix up the age of admission for 5-year integrated law degree and 3-year bachelor degree course in law, as 20 year and 30 year respectively, vide Notification BCI/0/1519 (L.E.Cir), dated 17th September, 2016, which was stayed by Supreme Court in Writ Petition (Civil) No. 1023 of 2016, vide order dated 30 March, 2016. However, the matter is pending adjudication.
When asked that any such restriction of age is violative of ‘right to education’, Chaturvedi said, “Article 21-A of the Constitution provides for the fundamental right to free and compulsory education to the age group of 6 to 14 years only.”
But why there should be restriction on people who by their own means and resources want to study law? It appears to be an arbitrary and unreasonable step.
When asked for the logic and reasoned decision behind fixation of age, Chaturvedi could only say, ” It looks odd that in one class, people of 20 years and 70 years are sitting together. There’s a generation gap.”
However, in India, it is mandatory for the administrative agencies to give speaking orders or reasoned decisions. In Anumathi Sadhukhan vs. A.K.Chatterjee (AIR 1951 Cal 90), the Calcutta High Court allowed the challenge to the validity of law which did not require a speaking order on ground of unreasonable restriction on the exercise of fundamental rights.
‘Reasoned decisions’ also involve a question of ‘procedural fairness’. A law which allows any administrative authority to take a decision affecting the rights of the people without assigning any reason cannot be accepted as laying down a procedure which is fair, just and reasonable and hence would be violative of Article 14 and 21 Maneka Gandhi vs. Union of India, (1978) 1 SCC 248.
Senior Advocate Mahalakshmi Pavani, President, Supreme Court Women Lawyers Association revealed, “Clause 28 of the Legal Education Rules 2008, lays down an age-limit with respect to admissions to the 5-year integrated law course and the 3-year LL.B. programme. This provision prescribes that no person beyond the age of twenty (and twenty-two in the case of SCs, STs, and OBCs) can seek admission in the 5-year integrated law course. Likewise, the said provision also states that no person beyond the age of thirty (and thirty-five in the case of SCs, STs and OBCs) could enrol in the 3-year LL.B. programme.”
The learned lawyer further said, “It may be relevant to point out that the Bar Council of India (BCI) had passed a resolution in 2013, withdrawing Clause 28 of the Legal Education Rules, 2008, thereby removing the age-restriction for seeking admission in a law college. However, this withdrawal was challenged in a writ petition before the Madurai-bench of the Hon’ble Madras High Court, which held that the withdrawal of Clause 28 of the Legal Education Rules, 2008 was illegal. A Special Leave Petition was filed before the Hon’ble Supreme Court of India, challenging this decision of the Madurai-bench of the Hon’ble Madras High Court, which was eventually dismissed.”
“Hence, as a consequence of the said rulings, the Bar Council of India vide a Circular dated 17th September, 2016 restored Clause 28 of the Legal Education Rules, 2008 and directed all universities and law colleges to comply with the said age-restriction with respect to admissions.
In March 2017, the Bar Council of India (BCI) extended the upper-age limit to twenty-two years for the 5-year integrated law course and forty-five years for the 3-year law course whilst a writ petition challenging this rule was pending before the Hon’ble Supreme Court of India.”
The senior advocate further said, “There appears to be no logic or rationale behind fixing up an age-limit for the purpose of pursuing legal education in our country. On one hand, the Bar Council of India is entrusted with the responsibility of promoting legal education in our country and on the other hand, it is this very Bar Council of India (BCI) that is imposing such ludicrous restrictions without any application of mind or reason. It is indeed absurd to see the BCI come up with such a rule in the first place, knowing well that it is manifestly arbitrary. It is even more astonishing to see the Bar Council of India adopt a flip-flop approach on this issue, thus leaving thousands of citizens who wish to pursue a career in law in the later stages of life, in the lurch of uncertainty.”
Mahalakshmi Pavani feels, “In fact, the Bar Council of India (BCI) had way back in 1993 passed a resolution barring a resolution prohibiting those above the age of forty-five from enrolling as an advocate. However, the Hon’ble Supreme Court of India in Indian Council of Legal Aid & Advice & Ors. v. Bar Council of India & Anr. held that this provision was unconstitutional on the grounds that it violated Articles 14, 19 and 21 of the Constitution.”
When thisauthor asked Pavani, “Do you agree that such rules violate Articles 14, 19(1) (g) and 21 of the Constitution?”, she said, “Absolutely yes! After all, these rules create an embargo on individuals above a certain age from seeking a legal education. Hence, such individuals are eventually prevented from and deprived of practicing law in our country. These rules violate a number of judicial precedents laid down by the Hon’ble Supreme Court that have established well-enunciated principles on the law of fundamental rights.”
“As we all know, there is a two-pronged test to test the validity of any law under Article 14 of our Constitution – (i) a reasonable classification is based on intelligible differentia that distinguishes persons or things that have been grouped together from others that have been left out of the group; and (ii) that the said differentia has a rational nexus to the object sought to be achieved by the impugned legislation. This is the law laid down by the Hon’ble Supreme Court of India in a number of judicial precedents on the subject of right to equality under the Indian Constitution.”
“Clause 28 of the Legal Education Rules, 2008 fails to provide a reasonable classification that is based on intelligible differentia by creating an upper age-limit. Furthermore, this rule is the antithesis of achieving the objects of the Bar Council of India Rules and the Advocates Act, 1961 in promoting legal education in our country.”
“Furthermore, these rules also violate citizens’ right under Article 19 (1) (g) of the Constitution, which provides for the right to practice any profession, or to carry on any occupation, trade or business. The restrictions imposed in the nature of an upper-age limit for enrolling into a law-course does not appear to be reasonable and deprives his/her person from choosing a career of his or her choice.”
“This brings us to the third point of the Golden Triangle – Article 21, which guarantees the Right to Life. The law laid down is extremely clear – the right to life also extends to the choice of a person. Hence, a person is free to pursue an education or career of his or her choice as long as such a career does not violate any law of the land. Personal choices and autonomy that emanates from an individual falls within the ambit of right to life, which was affirmed by a nine-judges Bench of the Hon’ble Supreme Court of India in Justice K.S. Puttaswamy & Anr. v. Union of India & Ors. Hence, I do not believe this Rule imposing an upper-age limit on seeking admission into a law college shall stand the test of constitutionality. It did not stand the test earlier and it shall not stand the test now.”
Mahalakshmi Pavani pointed out, “A writ petition Rishabh Duggal & Anr. v. Union of India has been filed before the Hon’ble Supreme Court of India, challenging the restoration of Clause 28 of the Legal Education Rules, 2008. On March 3, 2017 the Hon’ble Supreme Court was pleased to grant a stay on the Circular dated 17th September, 2016, till the writ petition was disposed off. As of today, this matter is still pending adjudication by the Hon’ble Supreme Court.”
“In fact, in September 2020, Rajkumari Tyagi, a widow of 77 years filed an intervention application in the Rishabh Duggal writ petition, on the ground that whilst she wished to pursue legal education in order to understand the law and manage the estate of her deceased husband, she was unable to secure admission in any law college owing to the age-limit restriction that had been imposed by the Bar Council of India. It is stated in her intervention application that the said age-limit restriction violates her fundamental rights under Articles 14, 19 and 21 that are guaranteed by the Constitution.”
Learned senior advocate Mahalakshmi Pavani also revealed, “Recently, in another rather interesting development, a 53-year old engineer –turned law aspirant has moved the Competition Commission of India (CCI) challenging this very Clause 28 of the Legal Education Rules, 2008 on the grounds that the Bar Council of India is abusing its dominant position by creating entry barriers to the legal profession. However, the complaint before the CCI appears to be misconceived as the CCI is neither the appropriate forum to adjudicate on this issue nor is it competent to grant reliefs that have been sought in this complaint. However, it remains to be seen as to how the CCI would approach this complaint that has been filed against the Bar Council of India.”
Another noted lawyer Reena Singh, practicing in Supreme Court supporting the views of Pavani said, “Eight years ago, the BCI had introduced the Rules on Standards of Legal Education framed under the Advocates Act of 1961. Clause 28 in the Schedule III of the Rules sought to impose an age cap for prospective law students. However, the idea of having an age limit, initially conceived in 2008, stands “revived” thanks to recent developments in the courts.”
Advocate Reena Singh further said that the idea behind such a move of the BCI might have been of achieving high quality and standard legal education. Hence, the Bar Council of India (BCI), incorporated the Rules of Legal Education, 2008, in Part IV of the Bar Council of India Rules, by exercising the powers, under Section 7(1)(h) and (i), 24(I)(c)(iii) and (iiia), 49(1)(af), (ag) and (d) of the Advocates Act, 1961.
Reena Singh also admitted that the Rule is arbitrary as it introduces an invidious classification by dividing one class of students into two artificial and irrational classes by prescribing the maximum age for admission to law courses. Restriction of the age to take admission violates the fundamental right, under Article-19 of the Constitution of India.
Reena Singh too confirmed that besides the impugned rule challenged before Supreme Court of India in Writ Petition No. 1023 of 2016 captioned ‘Rishabh Duggal & Anr. v. The Bar Council of India & Anr’, one more case is pending before the Competition Commission of India where the petitioner
T. Raveendra Babu, a 53-year-old engineer with the CPWD who is considering opting for the law, argues that the BCI is abusing its dominant position in violation of section 4 of the Competition Act 2002, imposing such restrictions.
Advocate Yawer Qazalbash, a stalwart of legal community, having to his credit a law practice of more than 60 years, appreciating and confirming the views of Mahalakshmi Pavani and Reena Singh said, “ In 2008 Bar Council of India framed Rules for Legal Education, and its clause 28 provided the upper limit as: (i) for 5 year course as 20 years for general category and 22 years for SCST/OBC students; and (ii) for 3 year course, 30 years for general category and 35 years for SCST/OBC students. Since then the age limit has become a bone of contention among those who tried to take admission and pursue legal education. After the Supreme Court criticized the fixing of the upper age of 20 years for taking admission to 5 year integrated law degree, the BCI, as an interim measure decided to increase the upper age limit from 20 to 22 years, and for 3 year law course from 30 to 45 years in March, 2017.
As for lawyers’ enrolment date is concerned, on Nov, 12, 2014, Supreme Court upheld a rule framed by several State Bar Councils fixing the upper age limit of 45 years for enrolment as an advocate. But the three judges Bench also pointed out, when Parliament did not fix any upper age limit, the State Bar Councils could not create distinction between similarly placed persons without any authority.
In 2013, BCI withdrew the rule because the Punjab & Haryana High Court struck down the provision for fixing upper age limits.
For a long time the Bar council had been debating and discussing the matter through consulting different Bar Associations, where it was advocated that some age limits should be prompted so that everybody, who had joined some kind of service and during that period took admission to obtain a law degree, and afterwards enrolled themselves as a lawyer post retirement. It had been suggested by Bars that there should be no bar for obtaining a law degree, but there should be an age bar for enrolment as an advocate. As such, the BCI has unnecessarily been prescribing impugned rules in violation of the basic rights of the people which should now be stopped.