Bombay High Court Strikes Down Illegal Transfer Fee Charged By Bar Council

Echoes Supreme Court's concern on Bar Councils' breach of public duty in Gaurav Kumar case

In a significant judgment reinforcing the rights of advocates and curbing arbitrary practices of State Bar Councils, the Bombay High Court has ruled that the Bar Council of Maharashtra and Goa acted illegally in charging transfer fees for shifting the enrolment of an advocate from one State Bar Council to another.

Delivering the verdict in Devendra Nath Tripathi v. Union of India & Ors (Writ Petition No. 1549 of 2017), a Division Bench comprising Justice Suman Shyam and Justice Shyam C. Chandak held that such fees are contrary to Section 18 of the Advocates Act, 1961, which explicitly prohibits charging any fee for the transfer of enrolment.

The Court drew strength from the recent decision of the Supreme Court in Gaurav Kumar v. Union of India (2023), where the apex court had strongly criticized the exploitative fee practices of Bar Councils across the country, describing them as a “breach of public duty.”

The Case of Advocate Devendra Nath Tripathi

The petitioner, Advocate Devendra Nath Tripathi (myself), originally enrolled with the Bar Council of Uttar Pradesh in 2003, later shifted to Mumbai to continue his legal practice. In 2013, he applied for a statutory transfer of his enrolment from Uttar Pradesh to Maharashtra under Section 18 of the Advocates Act.

However, the Bar Council of Maharashtra and Goa demanded ₹15,405 as transfer fees, divided into contributions to the Bar Council of UP (₹1,900), Bar Council of Maharashtra & Goa (₹11,490), and Bar Council of India (₹2,015). To make matters worse, the State Bar Council charged these amounts retrospectively from 2003, although Advocate Tripathi was never a member of the Maharashtra Bar during that period.

Feeling aggrieved, Advocate Tripathi moved the Bombay High Court in 2017, challenging the levy as illegal, arbitrary, and unconstitutional, citing violations of Articles 14 and 21 of the Constitution.

High Court's Findings

The Bench noted that Section 18 of the Advocates Act provides for the transfer of an advocate's enrolment “without the payment of any fee.” The law is explicit, leaving no scope for additional levies by State Bar Councils or even the Bar Council of India.

The Court observed that the transfer fee charged was based on a 2010 resolution of the Bar Council of Maharashtra and Goa, which purported to authorize such collections. However, the judges held that resolutions cannot override statutory mandates.

“The realization of such fee for transfer of enrolment was not permissible under Section 18(1) of the Act of 1961. As such, by applying the ratio laid down in Gaurav Kumar v. Union of India, the fee charged… cannot be held valid in the eyes of law,” the Court declared.

Accordingly, the writ petition was allowed to the extent of quashing the imposition of transfer fees. The Court, however, made its ruling prospective, and since the petitioner had not pressed for refund or damages, no monetary relief was ordered.

Supreme Court's Warning in Gaurav Kumar Case

The judgment extensively referred to the Supreme Court's 2023 ruling in Gaurav Kumar v. Union of India, which had confronted similar issues regarding arbitrary enrolment and transfer fees charged by State Bar Councils.

The apex court had categorically ruled that State Bar Councils cannot charge enrolment fees beyond the limits prescribed under Section 24(1)(f) of the Advocates Act. In scathing observations, the Court lamented that instead of developing self-sustaining revenue mechanisms, Bar Councils were burdening young law graduates and transferring advocates with exorbitant, unlawful fees.

Paragraph 103 of the Supreme Court's judgment, cited by the Bombay High Court, reads:

“According to the legislative scheme of the Advocates Act, the Bar Councils must only charge the amount stipulated under Section 24(1)(f) as an enrolment fee. Instead of devising ways and means to charge fees from enrolled advocates for rendering services, the SBCs and the BCI have been forcing young law graduates to cough up exorbitant amounts of money as a pre-condition for enrolment.”

The apex court went further, terming such practices a “breach of public duty” by institutions entrusted with upholding the independence and dignity of the legal profession.

A Question of Accountability

The Bombay High Court's reliance on the Gaurav Kumar precedent underlines the judiciary's increasing concern about the functioning of Bar Councils.

Both judgments highlight a troubling pattern: statutory bodies, tasked with regulating the profession and protecting advocates' rights, are themselves violating the law and imposing arbitrary burdens.

The Court's observations point towards the urgent need for greater transparency, financial accountability, and compliance with statutory mandates by Bar Councils. The issue is not merely administrative but strikes at the core of access to justice — as advocates are the very officers of the court who ensure citizens' rights are protected.

Broader Implications

Legal experts believe the ruling could have far-reaching consequences. Thousands of advocates who have transferred their enrolments between states over the years have been made to pay transfer fees similar to those challenged in this case.

While the Bombay High Court's ruling applies prospectively, it strengthens the argument for refund claims by other affected advocates, particularly in light of the Supreme Court's stance that such levies were never legally valid.

“This judgment brings clarity and puts an end to the illegal practice of charging transfer fees. The Bar Councils must reorient their financial practices in line with the law,” said a senior Mumbai-based advocate.

The Way Forward

The decisions in Advocate Tripathi and Gaurav Kumar cases together mark a watershed moment for reform in the regulatory structure of the legal profession. They send a clear message: Bar Councils cannot function like revenue-generating bodies at the expense of advocates' statutory rights.

Both courts have urged Bar Councils to develop lawful, sustainable models of revenue generation rather than exploit statutory processes such as enrolment and transfer.

For advocates, the judgments reaffirm the principle that their professional rights are protected by law and cannot be curtailed by arbitrary resolutions. For Bar Councils, the message is unambiguous: statutory fidelity is not optional but mandatory.

The Bombay High Court's verdict in Devendra Nath Tripathi v. Union of India is not merely a victory for one petitioner who was an Advocate but a reaffirmation of the Rule of Law within the legal profession itself. By aligning with the Supreme Court's stern rebuke in Gaurav Kumar v. Union of India, it underscores that institutions created to safeguard advocates' rights cannot themselves become violators of statutory protections.

In doing so, the judiciary has once again acted as a corrective force, reminding regulatory bodies that public duty is sacred — and its breach, intolerable.

Author is an Advocate. Views Are Personal.