V.K. Bali, C.J.

Priests and Nuns engaged in noble profession of divinity serving God and mankind irrespective of their not earning any salary and being paid maintenance or subsistence allowance alone were ordered to be kept out of noble profession of practicing Law as a lawyer. The order passed by the Bar Council of Kerala and the Bar Council of India thwarting their entry into the legal profession was successfully challenged by a Roman Catholic Priest under the Diocese of Irinjalakuda and two Nuns, not engaged in any kind of a salaried job or activity which may result in any remuneration. The above writs separately filed by them under Article 226 of the Constitution of India have been allowed by a Single Judge of this Court in a common judgment recorded in W.P.(C) No.18312 of 2005-E dated 7th November, 2005. Whereas the Bar Council of Kerala has accepted the judgment of the learned Single Judge and is keen to implement the same, the Bar Council of India, however, takes exception to the same by challenging it through present writ appeals. The only, but significant question that arises for determination is whether the Father and two Nuns were engaged in any trade, business or occupation in the context of Section 2(h) of the Bar Council of Kerala Rules. Before, however, we may deal with and answer the question as posed above in the light of the contentions that have been raised by the learned counsel appearing for the parties, it will be useful to extract, even though in brevity, the facts constraining a Priest and two Nuns to approach this Court for the desired relief.

2. W.P. (C) No.20635 of 2005 was filed by a Roman Catholic Priest who graduated in Law from the Bangalore University. He sought enrolment by an application which was filed before the Kerala Bar Council. On receipt of the application he was called upon to submit certain particulars and to furnish an affidavit stating that, presently he was not holding any post or rendering any service or doing any business or profession in any society or institution. He submitted the required documents from which it would be made out that he was working as a Parish priest of Little Flower Church, Anandapuram, for which no remuneration was paid to him. He was called for a hearing by the Enrolment Committee, but he was not permitted to participate in the enrolment held on 21.11.2004. While seeking enrolment as an advocate when his application was kept pending without any orders, he urged that he is a priest not engaged in any kind of salaried job or activity nor was getting any remuneration. 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, he was doing purely spiritual service and it was not a bar for doing any profession. He further urged that number of priests and nuns have already engaged in different professions like teaching, nursing, etc. A number of priests and nuns have already enrolled as advocates and were doing their practice and different places. A Nun in W.P.(C) No.18312 of 2005 urged that the application submitted by her for enrolment as an advocate was not allowed by the Bar Council of Kerala. While asking for similar prayers as were asked for by the petitioner in W.P.(C) No.20635 of 2005 she urged that she is a religious nun and not engaged in any kind of salaried job or activity which may result in any remuneration. 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. She further urged that a number of nuns and priests had already enrolled as advocates and were doing their practice at different centers of the State. Yet another Nun who filed W.P.(C) No.20636 of 2005 stated that she was a Nun belonging to the congregation of Medical Sisters of St.Francis Convent, Valiaveli, Thiruvananthapuram. She urged that she was not employed anywhere and that she was doing social service without any salary. No decision on her application was communicated to her. She, like the other two petitioners, urged that nunhood is only a religious life style and not a profession.

3. The cause of the petitions was opposed both by the Bar Council of Kerala as also by the Bar Council of India. In response to the petition filed by a Roman Catholic Priest it was pleaded in the counter affidavit filed by the Bar Council of Kerala that the petitioner entered the profession of divinity and the vocation chosen by him had got all the trappings of an employment and a profession. He was employed as a Parish Priest and therefore he was not eligible to be enrolled as an advocate as per the relevant Rules. Nuns, priests and sanyasins belongs to different religions are members of a profession and are not expected or cannot be permitted to practice the legal profession allowing them to be enrolled as advocates. If they were permitted to enter the field of administration of justice, the same would run counter to the fundamental tenets of enrolled as advocates. The cause of the two petitioners engaged in nunhood was also opposed on similar grounds. A counter affidavit was also filed by the Bar Council of India showing opposition to the prayers made by the petitioners. It has been pleaded that the decisions made by the Bar Council of India and Bar Council of Kerala were in tune with the provisions of the Advocates Act and the Rules framed thereunder. No fundamental right of the petitioners had been violated. The right to be enrolled as an advocate, at the most would be a statutory right which could be exercised subject to the qualifications restrictions and conditions provided under the Statute. It has been further pleaded that in view of the declaration to be given in Form 6 under Rule 2(h) in chapter VI of the Bar Council of Kerala Rules, the petitioners should be treated as ineligible for enrolment. It has been further pleaded that having regard to the present demands of the profession of lawyers, a Father or Nun would be incapable to function as an advocate.

4. Having regard to the facts that have been enumerated, time is now ripe to take into consideration the relevant provisions of the Advocates Act, 1961 and that of Bar Council of Kerala, Rules, 1979 in so far as they may be relevant to answer the question posed in the very beginning of the judgment. Any person who may fulfil the conditions mentioned in Section 24 of the Advocates Act, 1961, hereinafter referred to as the Act of 1961 would be qualified to be admitted as an advocate on a State roll. Such person has to be a citizen of India, having completed the age of twenty-one years, obtained a degree in Law, etc. It is conceded position that all the petitioners answer the qualification and are qualified to be admitted as advocate on a State roll. Specific mention of Rule 24 (1) (e) at this state, however, needs to be made. The same reads as follows:

(e) he fulfils such other conditions as may be specified in the rules made by the State Bar Council under this Chapter.

Section 24A provides disqualification for enrolment as an advocate. Concededly none of the petitioners has any disqualifications mentioned in Section 24A of theof 1961. Disposal of application for admission as an advocate is provided under Section 26 of theof 1961. The State Bar Council has to refer every application for admission as an advocate to its enrolment committee and subject to provisions of sub-sections (2) and (3) such committee has to dispose of the application in the prescribed manner. Where the enrolment committee of a State Bar Council may propose to refuse any such application, it shall refer the application for opinion to the Bar Council of India and every such reference shall be accompanied by a statement of the grounds in support of the refusal of the application. The enrolment committee of a State Bar Council shall dispose of any application referred to the Bar Council of India in conformity with the opinion of the Bar Council of India. Where the enrolment committee of the State Bar Council may refuse any application for admission as an advocate on its roll, it would send intimation to all other State Bar Councils about such refusal. Sub-sections (1) to (4) of Section 26 in so far as the same contains procedure as mentioned above read as follows:

26. Disposal of applications for admission as an advocate.- (1) A State Bar Council shall refer every application for admission as an advocate to its enrolment committee, and subject to the provision of sub-section (2) and (3), and to any direction that ay be given in writing by the State Bar Council in this behalf, such committee shall dispose of the application in the prescribed manner:

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(2) Where the enrolment committee of a State Bar Council proposes to refuse any such application, it shall refer the application for opinion to the Bar Council of India and every such reference shall be accompanied by a statement of the grounds in support of the refusal of the application.

(3) The enrolment committee of a State bar Council shall dispose of any application referred to the Bar Council of India under sub-section (2) in conformity with the opinion of the Bar Council of India.

(4) Where the enrolment committee of a State Bar Council has refused any application for admission as an advocate on its roll, the State Bar Council shall, as soon as may be, send intimation to all other State Bar councils about such refusal stating the name, address and qualifications of the person whose application was refused on the grounds for the refusal.

5. A State Bar Council as per the provisions contained in Section 28 of theof 1961 has been given power to make rules to carry out the purposes of Chapter III. Sub-section (2) (d) of Section 28 reads as follows:

(d) The conditions subject to which a person may be admitted as an advocate on any such roll;

6. It is the common case of the parties that all the petitioners, as mentioned above, have the prerequisite and necessary qualifications required for admission as advocates on State roll and further that none of them has any disqualification that may come in their way of enrolment as advocate as mentioned in Section 24A of theof 1961. The Bar Council of Kerala deriving authority from sub-section (1) of Section 28 of theof 1961 has framed the Bar Council of Kerala Rules, 1979, hereinafter referred to as the Rules. Under the Rules mentioned above every person eligible for enrolment as an advocate has to apply to the Secretary in Form No.I. As per Rule 2 (h) of Chapter V of the Rules an applicant seeking enrolment as an advocate has to make a declaration in Form No.6 that he 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 a Professor, Lecturer or Teacher in Law. In as much as, it is on the basis of Rule 2 (h) of the Rules, the Bar Council of Kerala and the Bar Council of India refused entry to the petitions in the profession as lawyer it will be useful to reproduce the same. It reads thus:

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 on which the declaration to the effect aforesaid has to be given reads as follows:

(Undertaking to be given by the Candidate)

1. I . . . . . . . . . . . . . . . .. do hereby declare that I am not in full or part time employment or services and 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

7. Mr. V.S. Surendran, learned counsel appearing for the Bar Council of India, the appellant herein, has urged before us that the petitioners while doing their duties as Priest and Nuns are engaged in a profession. Once, petitioners are engaged in a profession they could not be enrolled as advocate as per the bar created under Section 2 (h) of the Rules, further contends the learned counsel. That the profession in which a person may be engaged may not have attached to it remuneration would nonetheless be a profession. In his endeavour to show the profession would nonetheless be a profession even with remuneration, counsel refers to the meaning of profession as contained in Words & Phrases, Permanent Edition, Vol.34. The emphasis laid by the counsel in the meaning of the word profession contained in Word & Phrases, Permanent Edition, Vol.34 is to the following statements:

Literally the term profession is applied to a calling or vocation requiring special knowledge of a branch of science or learning, and in this somewhat restricted sense the word profession means an employment requiring a learned education, as, a profession of arms, the profession of a clergy man, lawyer or physician, the profession of chemistry or physics. .... while a profession is not a money getting business and has no element of commercialism in it, it does involve compensation or profit and it is of the essence of a profession that the profits should be dependent mainly on the personal qualifications of the person by whom it is carried on. It has been said that, in speaking of a persons profession, that branch of the worlds activities wherein he expends his usual everyday efforts to gain a livelihood is referred to. ...... Attorneys and clergymen are regarded as engaging in professions, as are physicians and persons engaged in related or associated occupations. ..... Profession has been held equivalent to, or synonymous with, business. (Words and Phrases and Maxims, Permanent Edition, Vol.34)

8. Counsel also placed reliance upon the English translation of the Code of Canon Law prepared by the Canon Law Society of Great Britain and Ireland. Emphasis is placed on Canon 281 which provides for remuneration to the Clerics which 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 and to their families needs from that income.

Counsel also relies upon Article 3 of Part III of the said canon with special reference 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.

9. The contention of the learned counsel based upon the definition of word profession as contained in Words & Phrases is that profession of a clergyman is indeed a profession and whether the same may have an element of profit, salary, or remuneration would be wholly meaningless. Once, therefore, a person may be doing the profession of a clergyman he would be a professional and not entitled to be enrolled as an advocate. Learned counsel further contends that a person profession divinity can well be said to be engaged in profession and the mere fact that he is a clergyman would not per se be enough to hold that he is not engaged in the profession as would be clear from the Code of Canon law prepared by the Canon Law Society of Great Britain and Ireland as per the canons referred to above the profession of divinity too may have remuneration attached to it.

10. In support of the contentions as noted above, counsel for the appellant relies upon decision of the Honurable Supreme Court in Haniraj L. Chulani v. Bar Council of Maharashtra & Goa, (AIR 1996 SC 1708 [LQ/SC/1996/749] .)

11. Learned counsel appearing for the Priest and Nuns joined issues with the counsel for the appellant and contends that a person engaged in divinity/religion cannot be said to be engaged in any profession. Priesthood or nunhood is a religious life style and not a profession.

12. We have heard learned counsel appearing for the parties and with their assistance examined the records of the case as also the impugned judgment of the learned Single Judge. We are convinced that from whatever angle the word profession may be looked at, be it going by the dictionary meaning or the ordinary meaning thereof, religion/divinity would be indeed a profession. Having said so, it shall however further to be seen as to whether the bar created under Rule 2(h) of the Rules for being enrolled as an advocate would be to the one who is doing a profession or something more. From a reading of Rule 2 (h) of the Rules and in particular the words engaged in any trade, business or profession we are of the clear view that the bar would be attracted only if a person is engaged in a profession. Concededly the petitioners were not engaged in any trade or business and the case of the appellant is that they are engaged in profession. There is difference between doing a profession and engaged in a profession. We are of the firm view that the word engaged necessarily means earning profit or remuneration. The word engaged is prefixed with the words in any trade, business or profession. The word engaged would thus necessarily apply to trade, business and profession. Any person engaged in any trade or business cannot be said to be engaged gratuitously. Trade or business necessarily generates money. The same has to be true with the word profession as well. Priests and Nuns may or may not be engaged in profession, even though, as mentioned above, professing religion is indeed a profession. A complete ban for entry into the legal profession to a class of clergyman would be wholly illegal. Before the bar created under Rule 2(h) of the Rules is applied it shall have to be found out as to whether a particular person professing religion is engaged in the same or not. We have already held above that the word engaged means gainfully employed, be it for remuneration, profit or salary.

13. We have already mentioned above that there is no embargo on the entry of the petitioners to the profession of a lawyer but for Rule 2(h) of the Rules, and the same, as mentioned above, would not be applicable to the case of the petitioners who are said to be certainly not engaged in the profession of religion, being paid only subsistence or maintenance allowance to sustain them only and it cannot be termed such engagement as profession which may generate money. In a given case, however, if a person professing religion as Priest or Nun may be engaged in profession within the meaning of word engaged as interpreted above, he or she can certainly be debarred from entering as an advocate. Cases are not lacking where an individual generates considerable money while being engaged in the profession of religion. In that case, be it a priest, a nun, a sanyasi or sanyasin, he would not be permitted to enter the profession of a lawyer as then alone he would be actually engaged in profession. The Bar Council, be it of Kerala or all India, consists of layers of eminence, ability, knowledge and prudence and would have done well to make this simple distinction between doing a profession and engaged in a profession while refusing to enter the name of the petitioners on the roll of advocates. They, however, failed to notice that priests and nuns seeking enrolment were not engaged in a profession. Priests and nuns are likely to take up the causes of persons seeking justice on nominal fee and some time even gratuitously as they have been trained to live a particular set of life. They would have taken up the causes of downtrodden and poor people with a humane touch and not necessarily on high and exorbitant fee. The religious background teaching them the philosophy of service before self, they could have rendered an equal if not better service than that of their counter-parts already engaged in the profession. The two Bar Councils also did not notice that being a priest or nun is not a disqualification for appointment to any government or private job. If, therefore, the priests and nuns were competent, qualified and suited for government jobs of highest responsibility surely, they would be equally competent and qualified to wear the robes of a lawyer.

14. The reliance placed upon by the learned counsel for the appellant on the decision of the Supreme Courts in Haniraj L. Chulani v. Bar Council of Maharashtra & Goa (supra) would be of no avail as the facts of the case, would reveal that Haniraj L. Chulani, the appellant, was engaged in the profession of Medicine. Appellant was a medical practitioner (colorectal surgeon) since 1970. During the continuance of his profession as a medical practitioner he joined LL.B. Degree Course and obtained Degree of Bachelor of Law on 4th March, 1991. Thereafter he applied to the State bar Council of Maharashtra & Goa for being enrolled as an advocate under the Advocates Act, 1961. He insisted that even though he is a medical practitioner he is entitled to simultaneously carry on the profession as an advocate. The Enrolment Committee of the Bar Council rejected his request for being enrolled as an advocate simultaneously with his carrying on his medical practice as a surgeon. He was ultimately informed that his application for enrolment as an advocate was rejected. He filed writ petition in the high Court of Bombay, which was dismissed. He then moved the Honourable Supreme Court by way of a special leave petition. The respondent Bar Council of Maharashtra in exercise of its powers under Sections 28(2) and 24(1)(e) of theof 1961 has framed Rules. Rule (1) of the Rules, which is relevant, reads as follows:

A person who is otherwise qualified to be admitted as an Advocate but is either in full or part time service or employment or is engaged in any trade, business or profession shall not be admitted as an Advocate.

Provisions of Rule (1) as quoted above are pari materia to Rule 2(h) of the Bar Council of Kerala Rules. The appellant being convinced that he was gainfully doing the profession of a surgeon had no choice but to challenge Rule (1) reproduced above framed by the Bar Council of Maharashtra as ultravires and illegal. It was urged in that connection that in so far as the said rule prohibits a person who is otherwise qualified to be enrolled as an advocate if he is already carrying on any profession like medical profession, it would suffer from the vice of excessive delegation of legislative power. In other words, the said rule would be unconstitutional and violative to Article 19(1)(g) of the Constitution of India and the said rule would not be saved by sub-article (6) thereof as it imposes an unreasonable restriction on the right of a citizen to pursue any profession of his choice. It was also urged that the rule is violative of Articles 14 and 21 of the Constitution of India as it seeks to deprive right of livelihood of the appellant in a most unreasonable manner. It was also urged that there was nothing obnoxious or illegal in a practicing doctor insisting on being enrolled as an advocate and in carrying on practice both as a medical practitioner as well as an advocate.

15. The Honourable Supreme Court in view of the rival contentions of the learned counsel for the parties framed the following points for the parties framed the following points for determination:

1. Whether impugned Rule 1 framed by the State Bar Council of Maharashtra & Goa suffers from the vice of excessive delegation of legislative power and hence is void and inoperative at law.

2. Whether the said rule is violative of Article 19(1)(g) and is not saved by sub-article (6) thereof.

3. Whether the aforesaid rule is violative of Articles 14 and 21 of the Constitution.

16. The Supreme Court on the basis of the reasoning given by it answered the questions framed above against the appellant. In the present case the petitioners have not challenged Rule 2(h) of the Rules stating that it suffers from the vice of excessive delegation of legislative power or violative of Article 19(1)(g) or Articles 14 and 21 of the Constitution of India. They simply states that they are not covered under the bar of Rule 2(h) of the Rules. They have sworn affidavits and placed unrebutted materials along with the applications for enrolment conclusively showing that they are not engaged by way of profiteering in the profession of religion. This position is not in dispute, nor a single word has been urged before us that the information supplied by the petitioners is in any manner incorrect, false or exaggerated. Unlike the appellant before the Honourable Supreme Court who was generating income from his medical profession, petitioners are living on subsistence or maintenance. By engaging themselves in the profession of divinity they are not generating any income. They are not gainfully employed. They are not holding any officer of profit and they are not getting any salary that may be enough even to follow the ordinary pursuits of their life. They are just sustaining themselves. This sustenance simply with a view to keep the body and soul together cannot be termed as engagement in a profession in contrast to the medical profession in which Haniraj L. Chulani was engaged. That is the distinction between the case of the petitioners in hand and that of Haniraj L. Chulani, the appellant before the Supreme Court.

17. In view of the discussion as made above, we hold that simply because an applicant seeking entry into a noble profession is professing religion would not be enough to reject the application and to bar him from practicing law. A Clergyman, be it a priest or run, as a class professing religion would not attract the bar for entry into profession as created under Rule 2(h) of the Rules and it shall have to be seen in each individual case as to whether the concerned specified applicant seeking entry into profession is engaged in a profession of religion in the context of his earning out of the said profession. If in a given case, the applicant may be engaged in the profession of religion as the word engaged has been interpreted by us, surely, the concerned Bar Council would be well within its right to bar his entry whereas in a case like the one in hand such a person would eminently deserve to practise Law as an advocate.

18. With the observation as made above, we dismiss all the appeals preferred by the Bar Council of India, but in the facts and circumstances of the case, make costs easy. Before we may part with this order we would like to mentioned that counsel for the petitioners also urged before us that once the Bar Council of Kerala has accepted the impugned judgment passed by the learned Single Judge and they are keen to implement it, the appeals preferred by the Bar Council of India would be wholly incompetent as it is only on a reference made by the Bar Council of Kerala that the Bar Council of India advised under the provisions of the Statute to reject the application of the petitioners and once, the Bar Council of Kerala itself feels that the petitioners cannot be barred to enter the legal profession, the appeals should be dismissed as not maintainable. We do not propose to go into this question, even though we may hasten to add that the question raised by the counsel for the petitioners is quite debatable and may have some merit in it as well. However, since we have dealt with the appeals on merits and have found them to be devoid of any substance, it may not be necessary to go into the question raised by the counsel for the petitioners. We leave the matter at that.