DOMINANT POSITION OF THE BAR COUNCIL OF INDIA
Updated: Apr 6
Author: Mayank Bhatt, 5 year of B.A.,LL.B, from ILS Law College Pune.
The Bar Council of India was established under Section 4 of the Advocates Act 1961, which states that there should be a Bar Council of India having jurisdiction over all the states where this Advocates Act of 1961 extends to. Bar Council of India is a regulatory body which regulates the legal profession and legal education in the country by framing rules and regulations. It also acts as a representative body for all the advocates in the country, and The Bar Council is also the apex body over all the Bar Councils of the states. In various judgments the courts have stated that the Bar Council of India as well as the various State Bar Councils are body corporate having a common seal and perpetual succession and are also conferred with power to hold, acquire or dispose of both movable and immovable property.
The competition Act of 2002
The competition law in India is maintained by the Competition Act of 2002. The Competition Act of India replaced the Monopolistic and Restrictive Trade Practices Act, 1969 ("MRTP Act") in 2002, as it was not well equipped to handle the competition aspect of the Indian economy.
The competition law was required after the liberalization of the Indian economy, when the Indian domestic businesses started facing competition from their domestic partners and as well as global players, the monopoly in the market arose and markets started increasing, there was an immense need for a competition law in the country in order to make a level playing field for all businesses, in order for them to grow, improve competition and to prevent unfair trade and monopoly in the market.
The main objective of the Competition law is to maintain competition and regulate anti-competition acts that are used by corporations to disrupt the market and to ensure a fair market and competition. Section 4 of the Competition Act deals with the dominant position of the companies in the market. It defines as to when a corporation can have a dominant position in the market, it states that a corporation is said to enjoy a dominant position when it has no other competition in the market and works independently from any kind of competition or it has the power to affect its competition or its consumers according to its will in its favor and hence it is said to have a dominant position in the market. When a corporation has a dominant position and uses that position to reduce or eliminate competition, it is said to have abused its dominant position. As the dominant position is in itself anti-competitive it is even worse to abuse that position.
Bar Council of India and its dominant position.
The legal profession in India is considered a very noble profession. The Bar Council of India has a dominant position on its functions and has the power to bend it according to its will, it has a position of strength when it comes to the legal profession. The Bar Council could be said to have a dominant position as it does not have any competition in the field and has the power to frame its own laws and rules for the conduct of the particular profession, be it the legal education or legal profession.
One example of the abuse of the dominant position by the Bar Council of India in regulating the legal profession is the fixation of the age limit for admissions in law courses in law colleges. As the rules framed by the Bar Council make it mandatory for any person to have a law degree in order to stand before a court as an advocate, and the only way to get a law degree and register oneself as an advocate is by taking admission in a recognized law college. If the Bar Council sets an age limit at the admission of students in the law colleges, it is thereby restricting entry of people in the particular field and therefore not providing a level playing field to all the people in the profession by denying entry. As it is said that learning has no age, and a person should be allowed to gain education at whatever age he wants.
The Bar Council of India had placed an age limit of 20 years for its five-year integrated law course and 30 years for its three-year LLB degree, which did not allow people of age above that to take admission in colleges and enter the profession. This was not only unfair but also discriminative towards people, it treated people differently only on the basis of their age. There was no reasonable classification that the Bar Council could put forward for such differentiation, hence it did violate the fundamental rights of the citizens as it treated them differently.
The Bar Council of India through Clause No. 28 of the Rules of Legal Education, 2008, created an indirect barrier in the entry into the legal profession by imposing age restriction on the entry into legal education.
Recently a 52-year-old woman had approached the Competition Commission of India, stating that the age limit under the Clause No. 28 of the Rules of Legal Education, 2008 amounts to abuse of dominant position by the Bar Council of India and was in contravention of Section 4 of the Competition Act, 2002. In the complaint the complainant alleged that the Bar Council is misusing its dominant position by refusing others to enter the legal profession. By allowing only people of a certain age group into the profession, the Bar Council is also violating freedom to choose any profession, under art.19 of the Indian Constitution.
The Bar Council of India is using the age restriction as a colorable exercise of power, and by enacting such colorable legislation, the council is denying entry to thousands of aspirants into the legal field each year. Though the rational behind the Bar Council’s decision was that to pick the best minds in their right age and allow only the most deserving to enter the field, as the legal profession is considered a very noble profession, it wanted to preserve the sanctity of the profession. But by doing this, it is also restricting thousands from entering the profession and creating an anti competition profession.
Currently the Supreme Court has stayed the age restriction for admission on law courses, in the current year i.e., 2020 there is no age bar for admissions for any of the law courses, be it five year integrated law course or three year law course, Bar Council has removed the age bar for entry into law courses, right now every one irrespective of their age can take admission into a law college. But there has not been any decision by the Supreme Court on this matter, it is only an interim order to allow everyone admission into law colleges irrespective of their age.
India is a vast country with many states and all states can have different conditions. There is a Bar Council in each state, but as an apex body there is a Bar Council of India that frames rules and regulations for everyone who tries to enter the legal profession.
We can say that the Bar Council of India has a dominant position when it comes to the legal profession by making rules for the profession and legal education. It can sometimes make rules that are unfair or not in accordance with natural law or unjust. We need to have a body to watch over it who can ensure that the Bar Council of India is not abusing its dominant position.
The Supreme Court is also playing a major role when it comes to maintaining a level field in the Indian market and ensuring that there are no unfair laws framed by the Bar Council of India.