Clause 28 is back as BCI attempts to ‘revive’ age limit for law courses

If the Bar Council of India has its way, law schools across the country may be faced with the prospect of imposing a maximum age limit for the courses they offer. Yet again.

As per a circular issued by the legal profession regulator two days ago, the idea of having an age limit, initially conceived in 2008, stands “revived” thanks to recent developments in the courts. The circular has been addressed to the vice-chancellor and principals of the country’s law universities and colleges.

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. The maximum age limit for joining the Bachelor’s law course was set at twenty years for general category students and twenty-two for SC/ST/OBC students. Similarly for the post-graduate course, the limit was thirty years for general category and thirty-five for reserved categories.

After a slew of petitions in different high courts challenging Clause 28, the BCI formed a one-man committee of advocate S Prabhakaran to peruse the validity of the provision. The same committee found that the clause fell afoul of Article 14 of the Constitution and recommended its deletion. Subsequently, the BCI passed a notification on September 28, 2013, withdrawing Clause 28.

This matter was then exhumed by B Ashok, an advocate of the Madurai Bench of the Madras High Court. In his writ petition, he prayed that the BCI notification withdrawing Clause 28 be quashed as it was in contravention of the amendment procedure under the Advocates Act. A Division Bench of the High Court allowed the petition.

The BCI then challenged the decision before the Supreme Court of India; however, a Bench of JS Khehar and Rohinton Fali Nariman JJ. upheld the Madras High Court verdict in December last year. In effect, as the BCI resolution says, the clause stands valid.

However, there are two High Court decisions that deem the clause invalid to begin with. In 2011, the Punjab & Haryana High Court held that the rule was arbitrary and irrational and that the making of such rule was “beyond the legislative competence” of the BCI.

Moreover, the Bombay High Court had earlier declared Clause 28 as non-existent. A writ petition was filed by advocate Yasmin Tavaria, challenging the constitutionality of the provision. She submitted that once the clause has been struck down [by the Punjab & Haryana High Court], there was no occasion for the Bar Council to withdraw the Gazette Publication containing the impugned Rule.

A Bench of Justices AS Oka and AK Menon concurred with this view and held,

“Suffice it to say that the decision of the Punjab and Haryana High Court has attained finality and hence, the impugned Regulation/Rule 28 does not exist on the Rule Book…The Bar Council of India is bound to consider the finding of the High Court that the Rule is arbitrary and is violative of Article 14 of the Constitution of India.”

Earlier this month, the BCI sought to impose this very provision for the Maharashtra Law CET 2016, an exam which has run into far graver problems.

And this is not the only time Clause 28 has reared its ugly head.

The organisers of last year’s Common Law Entrance Test (CLAT), RMLNLU, found themselves being dragged to the Allahabad High Court over the imposition of an age limit for takers of the exam. After the High Court scrapped the age limit, RMLNLU went in appeal to the Supreme Court. Quite interestingly, the apex court had struck down the age limit imposed for CLAT 2015.

It is only a matter of time before the clause is the object of attention in the apex court once again. One can only hope to attain some much needed clarity on the issue when it does.

Read the BCI resolution dated September 17: