In what could very well turn out to be another significant case affecting legal community and legal education, an orphan law aspirant has moved the Supreme Court challenging the age limit prescribed for admission to LL.B. course in India.
The petition by way of an impleadment application (in Rishabh Duggal matter), has been filed by one Michael Sam, an aspiring CLAT applicant who is an orphan.
The petition has been drafted by IDIA founder Shamnad Basheer and settled by Advocate Zoheb Hossain.
Interestingly, when the matter came up for hearing before a Bench of Justices Dipak Misra and R Banumathi today, Justice Misra chose to recuse from the case.
Senior Advocate Kapil Sibal appeared for Sam, pro bono.
Earlier, the Court had issued notice in the petition filed by one Rishabh Duggal challenging the age-limit prescribed by Clause 28, Schedule III, Rule 11 of the Rules of Legal Education, 2008.
In his petition, Sam has set out a moving background of his early life in Mumbai.
He was abandoned at birth and found by a lady, one Hashumati Lalit who supported and looked after him from 1995 till 2001. In 2001, he was admitted to Shelter Ark Orphanage in New Panvel where he remained till he completed class X. After that, he was required to vacate the hostel and fend for himself. After initial difficulties, he was able to secure a job and he constantly strived to move up in life. That is how he chanced upon law after an interaction with volunteers of Increasing Diversity by Increasing Access (IDIA).
IDIA selected him as a Trainee Scholar after testing his aptitude for law.
He was being trained by IDIA to crack the Common Law Admission Test (CLAT) when the BCI through its circular affirmed the age-limit of 20 years as eligibility to criterin for 5-year LLB course. This move by BCI prompted him to approach the apex court.
In his impleadment application, Sam has submitted that he is adopting in toto, the grounds raised in the writ petition filed by Rishabh Duggal.
“The applicant adopts in toto the grounds raised in the Writ Petition, including the constitutional infirmity of the age bar, its deleterious impact on his fundamental right to education and profession under Article 19 and 21, its innate arbitrariness and lack of rational nexus with the study of the law and the ability to excel therewith under Article 14 and the sheer lack of competence on the part of the BCI to impose such age restrictions.”
Interestingly, Sam in his petition has made an appeal by way of a poem penned by a friend.
“For when the heart is heavy, words are but few”
Clause 28
The impugned clause, clause 28 itself has a very interesting history.
It was introduced in 2008 by the Bar Council of India by way 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.
But the matter did not end there.
One B Ashok, an advocate in Tamil Nadu filed a petition in the Madras High Court praying 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. This effectively meant that clause 28 revived – precisely what the BCI stated in a circular issued in September last year.
However, what made the matter more interesting was that there were 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 had 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.”
As Aditya AK prophesied in his article, it was only a matter of time before the controversy reached the Supreme Court. Indeed it has come to that!
Whether more aggrieved parties will join Rishabh Duggal and Michael Sam remains to be seen.
