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It’s time for SC to fix the BCI age limit mess, argue IDIA orphan & 2 others with Zoheb Hossain, Kapil Sibal and a poem

The BCI age limit ban on legal education is ‘highly unjust’, ‘inequitable’ and ‘not rational’, argues SC writ petition

Anti-age limit SC challenge: Several leading legal luminaries entered law schools much later in their lives, and yet went on to make their mark in the profession
Anti-age limit SC challenge: Several leading legal luminaries entered law schools much later in their lives, and yet went on to make their mark in the profession

There have been numerous pending challenges and at least six high court judgments on the issue of whether the Bar Council of India (BCI) can impose a maximum age limit on law students (of which four judgments quashed the age limit and two upheld the BCI’s power to set one - see table above).

But now two writ petitions have intervened and will argue in the apex court today that enough is enough and that the Supreme Court should step in and sort out the confusion.

The petition, which was filed on 21 January pro bono by Supreme Court advocate-on-record Zoheb Hossain on behalf of Common Law Admission Test (CLAT) aspirant Michael Sam, will likely be heard today with senior counsel Kapil Sibal having agreed to appear pro bono in the matter.

Sam’s case seeks impleadment into another Supreme Court challenge of the age limit by Hossain in the case of Rishabh Duggal vs BCI.

The Duggal case was first listed before Justice Dipak Misra on 3 January, with Misra having issued notice on the BCI (more details on that case below).

Michael Sam’s case

Sam, who is a 21-year-old orphan abandoned at birth and whose exact birthday is therefore not known, became an Increasing Diversity by Increasing Access (IDIA) scholar after an IDIA sensitisation talk.

After years of education paid for by various donors and after completing class X, having worked as a carpenter and various odd jobs since then to make ends meet and pay for his Class XI and XII education studying at night, Sam has begun preparing for the CLAT over the last few months.

However, according to the petition drafted by IDIA founder Shamnad Basheer and settled by Hossain, Sam was “visibly shattered” when he found out about the 20-year upper age limit that was unexpectedly and suddenly sprung by the BCI on CLAT aspirants on 17 September 2016, and implemented rapidly by the CLAT committee the following month.

Hossain pleads on behalf of Sam in the petition:

The Applicant therefore seeks the permission of this Hon’ble Court to challenge this highly unjust and inequitable age barrier imposed on him and those similarly situated, who may not have been dealt a good hand at birth, and have had to struggle to educate themselves. And now find themselves on the wrong side of the age barrier.

Even outside of his own circumstances, Michael firmly believes that his age and experience will bring a rare diversity into the law school classroom and enrich the educational process. He strongly believes that there is no rational nexus whatsoever between one’s age and his/her capacity to study and excel in the law. He is given to understand that several leading legal luminaries entered law schools much later in their lives, and yet went on to make their mark in the profession.

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. The Applicant seeks liberty to urge additional grounds in support subsequently.

The petition has also included a poem written by a friend of Sam’s, starting with:

Coming of Age

Is age a mere number,

Or something of a stumbler?

How would I know?

When I’ve got nothing to show

No laughter, no light,

No parent in sight.

Rishabh Duggal’s & Rishabh Arora’s cases

In the Rishabh Duggal case filing, Hossain, assisted by advocate Adeeba Mujahid, was arguing on behalf of a 21-year-old electrical and electronics bachelors student Rishabh Duggal and commerce student Rishabh Arora to both be allowed to apply to take a law degree.

Duggal had already joined a tutorial programme to help him prepare for entrance tests, and forewent applying to any other jobs, and Arora, who turned 21 in January 2017, left the second year of his commerce degree to pursue his “dream of joining the legal profession”.

The petition argues that the BCI’s new rule:

has violated the fundamental rights of the Petitioners and several other similarly situated students who are being deprived of an opportunity to pursue their passion and a profession of their own choice merely because they have crossed the maximum prescribed age of 20 years for admission in law school.

Furthermore, the “inconsistency in the views taken by different High Courts, has resulted in immense hardship to the aspiring law students like the Petitioners herein”, notes the petition:

It is humbly submitted that the impugned clause 28 relates to ‘Age on Admission’ and stipulates the age limit for admission in ‘Integrated Bachelor of law degree programme’, i.e. the 5 year integrated law degree course as well as the ‘Three Year Bachelor Degree course in Law’, i.e. the 3 year law degree course. However, no reason, whatsoever, has been given by the BCI for imposing restriction on the age on admission of students in Schedule III, under Rule 11 of the Rules, which deal with the “Minimum infrastructural facilities required in a Centre of Legal Education for applying permission to run law courses with affiliation from an Indian University”. The impugned Clause 28 creates two classes of students without there being any nexus with the object sought to be achieved by it.

Thus, it is humbly submitted that the said clause is a blatant violation of the fundamental right to equality before the law guaranteed under Article 14, the freedom to carry on any profession, trade, occupation or business, guaranteed under Article 19(1)(g) of the Constitution of India respectively as well as the right to live with human dignity and to pursue a livelihood of one’s choice which have been read into the right to life and personal liberty under Article 21 of the Constitution by this Hon’ble Court and is therefore arbitrary, unlawful and unconstitutional and deserves to be struck down as unconstitutional.

A series of unfortunate and confusing judgments

Chronicling a brief history of the BCI and age limits, the Duggal petition notes that in 1993 the BCI had first instituted a 45-year-age-limit to enrolment as an advocate, which was challenged before the Supreme Court and struck down in 1995.

In 2008, the BCI re-introduced an age limit in a new notification of rules governing minimum infrastructural facilities of law colleges, which was challenged that and the following year in more than 200 writ petitions with several interim stays passed by high courts.

In 2009, the Madras high court upheld the upper age limit criteria of the BCI, but in 2011 the Punjab & Haryana high court held the age limit ultra vires the BCI’s legislative competence.

In 2013, the BCI formed a one-man committee under Thiru S Prabakaran, who agreed that the age limit rules were beyond the BCI’s powers, in violation of fundamental rights and the principles of natural justice.

On 31 August 2013, the BCI then passed a resolution withdrawing its age limit notification from the Gazette, with the BCI then withdrawing its appeal against the Punjab & haryana high court matter that had ruled against the age-limit.

The Bombay high court on 22 January 2015 held that the BCI was bound and would have to consider the Punjab & Haryana high court order before re-introducing any age limit. Several high courts then followed suit and held in favour of challengers against the age limit, with the Rajasthan high court in February 2015 directing the CLAT convenor to drop the age limit.

However, somewhat bizarrely, on 7 August 2015, the Madurai bench of the Madras high court declared the BCI’s withdrawal of its age limit notification as invalid in the case B Ashok v law ministry (WP (MD) No 9533 of 2015).

Citing this order, despite the high court judgments declaring the age limit illegal, the BCI then declared that its clause 28 of the Legal Education Rules 2008 was restored.

Read Michael Sam full petition and poem below (PDF)

Read Rishabh Duggal SC challenge of the age limit (PDF)

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