Judgment:
K. Balakrishnan Nair, J.
1. These Writ Petitions throw up an interesting point, i.e., whether priests and nuns are eligible to be enrolled as Advocates, for the decision of this Court.
WP(C) No. 20635/05
2. This Writ Petition is filed by a Roman Catholic priest, under the diocese of Irinjalakuda. He has graduated in Law from the Bangalore University. He submitted the application for enrolment before the Kerala Bar Council, after paying all the requisite fees. He also paid a late fee of Rs. 2,000/- for participating in the enrolment, which was scheduled to be held on 21.11.2004. While so, he was served with Ext.P2 communication dated 30.10.2004, calling upon him, to submit certain particulars and also to furnish an affidavit, stating that, presently, he is not holding any post or rendering any service or doing any business or profession in any society or institution. He submitted the requisite documents and also produced Ext.P3 certificate, which stated that he is working as a Parish Priest of Little Flower Church, Anandapuram, for which, no remuneration is paid to him. The petitioner was called for a hearing by the Enrolment Committee on 10.11.2004. But, he was not permitted to participate in the enrolment held on 21.11.2004. He submits, his application is kept pending without any orders passed thereon. The petitioner contends, as per the provisions of the Advocates Act and the Rules framed thereunder, by the Bar Council of India and the Bar Council of Kerala, he is eligible to be enrolled. He also submits, by being a priest, he cannot be treated as employed in any salaried post or job. The relevant pleading of the petitioner in this regard is contained in Ground D, which reads as follows :
'It is submitted that the petitioner is a priest and that he is not engaged in any kind of salaried job or activity, which receive remuneration. It is submitted that priesthood is a religious life-style and not a profession. The Catholic Church counts priesthood as one of the seven sacraments of Christianity. The marriage, blessing of life together is also considered as one of the seven sacraments. As a priest, the petitioner is doing purely spiritual service, is not a bar for doing any profession. A number of priests and nuns are already engaged in different professions like teaching, nursing etc., (and) even in government service. It is also a fact that a number of priests and nuns have already enrolled as advocates and (are) doing their practice at different places.'
Therefore, he prays for a declaration that he is eligible to be enrolled as an Advocate on the rolls of the state Bar Council. He also seeks a mandamus to admit him as on Advocate on the rolls of the State Bar Council.
3. The 1st respondent Kerala Bar Council has filed a counter affidavit. According to the Bar Council, the petitioner has entered the profession of divinity. The vocation thus chosen by the petitioner has got all the trappings of an employment and a profession. He is employed as a Parish priest and therefore, he is not eligible to be enrolled as an Advocate, as per the relevant Rules. It is also contended that nuns, priests and sanyasins belonging to different religions are members of a profession and are not expected or cannot be permitted to practice the legal profession, by allowing them to be enrolled as Advocates. If they enter the field of administration of justice, the same will run counter to the fundamental tenets of secularism. So, they are not entitled to be enrolled as Advocates, it is contended.
WP(C) No. 18312/2005
4. This Writ petition is filed by a nun, who is a law graduate. Though she submitted the application for enrolment as an Advocate, the same was not allowed by the Bar Council of Kerala. No order, rejecting her application for enrolment, is produced in the Writ Petition. Her prayer is, for a declaration that she is eligible to be enrolled as an Advocate and she prays for issuing a writ of mandamus to the Bar Council of Kerala, to allow her to be enrolled. She is engaged in social work, as evident from Ext.P2 certificate, issued by the Mother Provincial of her congregation. According to her, she satisfies all the statutory requirements, for the purpose of enrolment. She asserts that she is not engaged in any kind of salaried job or activity and does not receive any remuneration. Her pleadings in this regard are contained in Ground B, which read as follows:
'It is submitted that the petitioner is a religious nun and that she is not engaged in any kind of salaried job or activity, which receives any remuneration. It is submitted that nunhood is a religious life-style and not a profession. A number of nuns and priests are already engaged in different professions like teaching, nursing etc. (and) even in government service. It is also a fact that a number of nuns and priests have already enrolled as advocates and (are) doing their practice at different centres of the State.'
It is further submitted that by refusing to enroll her as an Advocate, the Bar Council is infringing her fundamental rights, guaranteed under Articles 14, 15, 16, 19(1)(g), 21 and 25 of the Constitution of India.
5. The 3rd respondent Bar Council of India has filed a counter affidavit, resisting the prayers in the Writ Petition. It is submitted therein that the petitioner's application has not been finally disposed of by the State Bar Council or the Bar Council of India. The Bar Council of India has decided to call for certain particulars from the Congregation of Mother Carmel to decide on the claim of the writ petitioner. It is submitted that since she is engaged in the profession of religion, it proposes to reject her application. The allegations of violation of her fundamental rights, are unfounded, it is submitted. No one has got any fundamental right to get enrolled as an advocate. It is only a statutory right, which can be exercised, subject to the qualifications, restrictions and conditions, provided under the Statute. Relying on the definition of nun in various dictionaries, the 3rd respondent submits, being a nun, is a profession by itself. So, in view of the declaration to be given in Form 6 under Rule 2(h) in Chapter V of the Bar Council of Kerala Rules, the petitioner should be treated as ineligible for enrolment. It is also submitted that having regard to the present demands of the lawyering profession, a nun will be incapable to function as an Advocate. Relying on the dictionary meaning of profession, it is reiterated that the petitioner is engaged in the profession of Theology. On the above pleadings, the 3rd respondent prays for dismissal of the Writ Petition.
WP(C) 20636/05
6. This Writ Petition is also filed by a nun, belonging to the congregation of Medical Sisters of St. Francis Convent, Valiaveli, Thiruvananthapuram. She has passed the three year LL.B. course in 2004, in first class, from the Kerala University. She submitted the application for enrolment, scheduled to be held on 21.11.2004, along with all requisite documents. She paid the requisite fee also. Ext.P2 is the affidavit filed by her, stating that she is not employed anywhere and that she is doing social service without any salary for the same. While so, she was called upon, to appear before the Enrolment Committee on 10.11.2004. Though, she was heard on that date, no decision was communicated to her, but she was not allowed to participate in the inrolment held on 21.11.2004 or in the subsequent enrolments held on 16.01.2005 and 03.04.2005. Later, she was served with Ext.P3 communication dated 20.04.2005, forwarding the decision of the Enrolment Committee, dated 10.11.2004, holding that she is ineligible to be enrolled as an advocate, along with Ext.P5 communication dated 21.03.2005 of the Bar Council of India, The said communication would show that the Bar Council of India has also approved the stand of the Bar Council of Kerala, on the eligibility for enrollment of the petitioner. The petitioner challenges Exts.P3, P4 and P5 in this Writ Petition. She submits, the decisions of the Bar Council of India and that of the Bar Council of Kerala, are opposed to the provisions of the Advocates Act and the Rules framed thereunder. They also violate her fundamental rights guaranteed under Articles 14, 15, 16, 19(1)(g), 21 and 25 of the Constitution of India. She also submits, nunhood is a religious life-style and not a profession. Her pleadings in this regard are contained in Ground D of the Writ Petition, which read act follows :
'It is submitted that the petitioner is a religious nun and that she is not engaged in any kind of salaried job or activity, which receive any remuneration. It is submitted that nunhood is a religious life-style and not a profession. A number of nuns and priests are already engaged in different professions like teaching, nursing etc. (and) even in government service. It is also a fact that a number of nuns and priests have already enrolled as advocates and are doing their practice at different centres. The petitioner as a citizen of this land, has the right to practise any profession or to carry on any occupation. The decision of the respondents in not admitting the petitioner as an advocate on the ground of her religious commitment is unconstitutional and violative of Articles 14, 15, 16, 19(g), 21 and 25 of the Constitution of India.'
The petitioner prays for quashing the impugned orders and prays for a direction to the Bar Council of Kerala, to allow her to enrol as an advocate.
7. The 1st respondent Bar Council of Kerala has filed a counter affidavit, supporting the impugned orders. According to it, a nun, who takes a vow of obedience, poverty and celibacy, enters the profession of divinity. The vocation chosen by her has got all the trappings of an employment of a profession. So, she is not eligible to be enrolled. According to the said respondent, nuns, priests and sanyasins, belonging to different religions, are members of a profession and are not expected to or cannot be permitted to practise legal profession, by getting themselves enrolled as advocates. Therefore, the said respondent prays for dismissal of the Writ Petition.
8. I heard the learned Counsel Mr. Kurian George Kannanthanam and Mr. Wilson Urmese, for the petitioners, Mr. V.V. Surendran, learned Standing Counsel for the Bar Council of India, Mr. Grashious Kuriakose, learned Counsel for the Bar Council of Kerala and also Mr. T.A. Shaji, learned Counsel appearing for the Enrolment Committee The learned Counsel for the respondents took me through the English translation of the Code of Canon Law, prepared by the Canon Law Society of Great Britain and Ireland. Special reference was made to the obligations and rights of clerics in Chapter III thereof. Pointed reference was made to Canon 281, which provides for remuneration to the Clerics. The same reads as follows :
'Since Clerics dedicate themselves to the ecclesiastical ministry, they deserve the remuneration that befits their condition, taking into account, both the nature of their office and the conditions of time and place. It is to be such that it provides for the necessities of their life and for the just, remuneration of those whose services they need.
Suitable provision is likewise to be made for such social welfare as they may need in infirmity, sickness or old age.
Married deacons who dedicate themselves full-time to the ecclesiastical ministry, deserve remuneration sufficient to provide for themselves and their families. Those, however, who receive a remuneration by reason of a secular profession which they exercise or exercised, are to see to their own end to their families needs from that income.'
They also relied on Article 3 of Part III of the said canon. Special reference was also made to Canon 654, which reads as follows :
'By religious profession, members make a public vow to observe the three evangelical counsels. Through the ministry of the Church, they are consecrated to God and are incorporated into the institute, with the rights and duties defined by law.'
Relying on the above Canon, it is stated that religion is a profession. In answer to the said submission, the petitioners would submit that technically, religion or divinity is also treated as a learned profession, but, the same is not a profession, as contemplated under Rule 2(h) of Chapter V of the Bar Council of Kerala Rules. What is contemplated under the said Rule, is a profession, which generates earnings for the person concerned, like trade or business. They also point out that by merely being a priest or a nun, they are not carrying on any profession or employment. They do not earn any wages. In deserving cases, it is true, they are provided with some allowance, which may be necessary for their sustenance. The same has nothing to do with the concept of wages earned from employment, it is submitted.
9. Section 24 of the Advocates Act, 1961 provides the qualifications, necessary for a person to be enrolled as an advocate. It is common case that the petitioners have all the qualifications, except, those prescribed by the Rules, under Section 24(1)(e) of the Advocates Act, which reads as follows :
'24. Persons who may be admitted as advocates on a State roll :
(1) Subject to the provisions of this Act and the rules made thereunder, a person shall be qualified to be admitted as an advocate on a State roll, if he fulfils the following conditions, namely :
(a) ...
(e) he fulfil is such other conditions as way be specified in the rules made by the State Bar Council under this Chapter.'
Section 24A of the Act provides, the grounds for disqualification for enrolment. It is common case that the petitioners do not suffer from any disqualification under Section 24A, The Rules framed by the Bar Council of Kerala, under Section 24(1)(e) of the Advocates Act and other relevant Rules, are contained in Chapter V of the Bar Council of Kerala Rules 1679, Rule 2(h) is the Rule relevant in this case, which reads as follows :
'A declaration in Form No. 6 that the applicant is not in full or part time employment or service and is not engaged in any trade, business or profession, except a person, who is in part-time service as Professor, Lecturer or Teacher in Law.'
Form No. 6 is extracted below for convenient reference :
'(Undertaking to be given by the Candidate)
1. I ... do hereby declare that I am not in full or part time employment or services sand I am not engaged in any trade, business or profession.
2. I ... do hereby undertake that if after my admission as an advocate, I accept full or part-time service or I am engaged in any trade business or profession (other than such as is exempted by the Bar Council of Kerala from the operation of this undertaking), I shall forthwith inform the Council of such employment or engagement and shall cease to practise as an Advocate.
3. I ... do hereby undertake that I shall not accept any employment which, in the opinion of the Bar Council, is derogatory to the status of an Advocate.
Date : Signature of the applicant'
Rules 47 to 40 of the Bar Council of India Rules are also relevant in this case. Those Rules are quoted below for convenient reference :
'47. An Advocate shall not personally engage in any business but, he may be a sleeping partner in a firm doing business provided that in the opinion of the appropriate Bar Council, the nature of the business is not inconsistent with the dignity of the profession.
48. An Advocate may be Director or Chairman of the Board of Directors of a company with or without any ordinary sitting fee, provided, none of his duties are of an executive character. An Advocate shall not be a Managing Director or a Secretary of any company.
49. An Advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long at he continues to practise and shall, on taking up any such employment intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practise as an Advocate so long as he continues in such employment.
Nothing in this rule shall apply to a Law Officer of the Central Government of a State or of any Public Corporation or body constituted by statute who is entitled to be enrolled under the rules of his State Bar Council made under Section 28(2)(d) read with Section 24(1)(e) of the Act despite his being a full time salaried employee.
Law Officer for the purpose of this rule, means a person who is so designated by the terms of his appointment and who, by the said terms, is required to act and/or plead in course on behalf of his employer.'
The petitioners relied on the decisions of this Court reported in Sampathkumar v. Bar Council of India (1984(2) KLT 882), Indian Council of Legal Aid & Advise v. Bar Council of India (1995(1) KLT 311) and Fr. Agnelo Grades v. Regional Provident Fund Commissioner : (2005)IILLJ132Bom . The learned Counsel appearing for the respondents, on the other hand, relied on Form No. 6, framed under Rule 2(h) in Chapter V of the Bar Council of Kerala Rules, 1978 end submitted that a person engaged in profession, is ineligible for being admitted to the rolls of the Bar Council. They also relied on the decision Hansraj v. Bar Council of Maharashtra : AIR1996SC1708 and also the decisions in S. Pillai v. Executive Officer, Panchayat Board : AIR1966Mad262 and N.E. Merchant v. State (AIR 1966 Bombay 283). They also took me through various dictionaries, wherein, the meaning of profession is given. All of them treat divinity/religion also as a profession, along with medicine and law. Therefore, they submit that the petitioners, who are already the members of a profession, are ineligible for enrolment as Advocates. The learned Counsel for the petitioners pointed out that a person, who is already enrolled as an Advocate, is prohibited from personally engaging in any business, employment etc. under Rules 47 to 48 of Part VI, Chapter 11 of the Bar Council of India Rules. An Advocate should not be a Managing Director or the Secretary of a Company. An Advocate shall not foe a full-time salaried employee of any person, Government, Firm, Corporation or concern. So, it is submitted that going by the above Rules, if an Advocate becomes a priest or a nun, he or she in not disqualified to continue as an Advocate. Therefore, it is submitted that the Rules do not prohibit entry of a priest or a nun, into the profession of law.
10. Wartons Law Lexicon defines profession as 'calling, vocation, known employment' and adds, Divinity, Physic and Law are called the Learned Professions, Blacks Law dictionary gives the meaning of profession as follows :
'A vocation of occupation, requiring special usually advanced education, knowledge and skill e.g., law or medical professions. Also refers to whole body of such profession.
Labour and skill involved in a profession is predominantly mental or intellectual rather than physical or manual.
The term originally contemplated only theology, law and medicine, but as applications of Science and learning are extended to other departments or affairs, other vocations also receive the name, which implies professed attainments in special knowledge as distinguished from mere skill.
The act of professing a public declaration, respecting something. Profession of faith in a religion.'
It is true, going by the dictionary meaning of profession, religion/divinity is treated as a profession. So, nuns and priests are members of that profession. But, the profession mentioned in Rule 2(h) of the Bar Council of Kerala Rules, is a profession, which is analogous to trade or business, which generates income and not the profession of religion. No one joins priesthood or nunhood as an employment or profession, for the purpose of earning a livelihood. The persons, who join the profession of divinity, dedicate their lives to serve God and men. So, I am inclined to accept the contentions of the petitioners that by merely being priest or a nun, they are not engaged in any profession, which is prescribed by Rule 2(h) mentioned above. Further, Rules 47 to 49 of the Bar Council of India Rules will clinch the issue. A person already enrolled as an Advocate is Bar Council is to continue as an Advocate, even if he joins the profession of religion. A person, who is already enrolled, can be disqualified, only on the grounds mentioned in the said rules. Those Rules do not prohibit joining the profession of religion.
10. The various decisions cited by both sides, are not strictly relevant to the point to be decided in this case. Therefore, I am not referring to those decisions. The contention of the respondents that priests, nuns, sanyasins etc., are not eligible to join the profession of lawyering, is not supported by any statutory provision. But, on the contrary, I feel that the entry of such persons, will only add lusture to the profession. The profession needs selfless dedicated persons to take up the causes of the downtrodden and of environmental protection, without being concerned with the fee paid. Going by the pleadings and the materials produced, persons who pass out from the seminaries on other institutions as priests or nuns, are persons, trained in divinity and who have taken the vow to serve God and His people. Such persons can seek and obtain employment in any service. In the field of Education and Medicine, there are so many priests and nuns, rendering meritorious services. They can also seek employment under the Government and get appointed in Government service. Being a nun or a priest, is not a disqualification for being appointed under the government. Of course, some priests and nuns may be engaged in full-time employments, which may be a disqualification for enrolment. But, being a priest or a nun, by itself, cannot be treated as a disqualification. It is declared so.
11. But, non-receipt of remuneration need not be decisive in determining the eligibility of a priest/nun for enrolment. If a priest or nun is employed as a full-time teacher or nurse, he/she may be ineligible for enrolment, even if he/she is working without receiving any remuneration. In such cases, they can be asked to quite the employment as a condition for enrolment. Full-time employment/engagement under the Church or the institutions under it, though, without remuneration, can also be a disqualification in certain cases, in such cases, the Bar Council has to take a decision, having regard to the facts of those cases.
12. Being a Parish priest, also need not be necessarily a disqualification, as the same will depend upon the time required to discharge his duties as a parish priest. If the Bar Council of Kerala has got any doubts regarding the nature of duties of a Parish priest, the petitioner in WP(C) No. 20635/05 may be called upon to furnish the details regarding the nature of duties as a Parish priest and the time required to discharge those duties. If those duties, are rendered as a part-time voluntary service to the parishioners and the same will not affect the functioning as a full-time lawyer, he can be allowed to be enrolled. Otherwise, he can be asked to quit the post of Parish priest, to enable him to got enrolled as an advocate.
13. In the result, the impugned orders are quashed. The Enrolment Committee of the Bar Council of Kerala is directed to reconsider the applications filed by the petitioners in all these Writ Petitions, for enrolment, in accordance with law, in the light of the observations made herein above. The decision in this regard shall be taken by the Enrolment Committee, within one month from the date of receipt of a copy of this judgment after affording an opportunity of being heard to the petitioners.
The Writ Petitioners are disposed of as above.