Competition Commission of India: BCI Not An Enterprise
Competition Commission of India, in a recent judgement, has
ruled that that the Bar Council of India (BCI) is not an enterprise.
The judgement came further to a complaint filed with Competition Commission of India alleging that the Bar Council of India was indulging in an abuse of its dominant position through Clause 28 of the Rules of Legal Education, 2008 prescribing age limitation for entry into legal education, that reads as under:
Clause  - Age on Admission:
(a) Subject to the condition stipulated by a university on this behalf and the high degree of professional commitment required, the maximum age for seeking admission into a stream of integrated Bachelor of Law degree program, is limited to twenty years in case of general category of applicants and to twenty-two years in case of applicants from SC, ST and other Backward Communities.
(b) Subject to the condition stipulated by a University, and the general social condition of the applicants seeking legal education belatedly, the maximum age for seeking admission into a stream of Three Year Bachelor Degree Course in Law, is limited to thirty years with right of the University to give concession of five further years for the applicant belonging to SC or ST or any other Backward community.
Mr. Thupili Raveendra Babu, a 52-year-old executive engineer in the Central Public Works Department filed a complaint stating his intent to pursue legal education post his retirement but was barred from it owing to Clause 28 of the Rules of Legal Education, 2008, which banned General Category above 30 years of age from pursuing a legal education. The complainant charged that the BCI, in abuse of its predominant position, exercised arbitrary control over the legal education and practice in India and particularly through the Clause 28 of barring applicants over 30 years from pursuing law, was contradicting Section 4 of the Competition Act, 2002.
Elaborating on this, the complainant stated that the BCI members in the veil of Clause 28 intended to reduce competition to its voters and consequently obstruct the legal profession. Accordingly, the declaration of Clause 28 as illicit and void ab initio alongside a punishment to be imposed on BCI for the infringement of Section 4 of the Act.
The Complainant also for interim directions under Section 33 of the Act for suspending the impugned Clause 28. He submitted that allegedly prima facie case of violation of Section 4 of the Act is established against the BCI and the balance of convenience lies in his favour. He further states that irreparable loss and harm would be caused to him and many other legal aspirants for pursuing legal education in India, if the operation of Clause 28 is not suspended.
In order to adjudicate the issue effectively, the Commission thought it fit to examine, the status of the BCI as an enterprise within the contours of the provisions of Section 2(h) of the Act, which defines the term enterprise. After recording the various provisions of the Advocates and the functions of Bar Council, the Commission came to the conclusion that BCI as an Institution is discharging functions, which are regulatory in nature in respect of the legal profession and not engaged in any activity relating to provision of any kind of services.
The Commission also referred to a prior decision in Case No. 39 of 2014, In re: Dilip Modwil and Insurance Regulatory and Development Authority (IRDAI), wherein the Commission had the occasion to examine, the status of IRDAI as an ‘enterprise’ under the Act. The Commission had observed that any entity can qualify within the definition of the term ‘enterprise’ if it is engaged in any activity which is relatable to the economic and commercial activities specified therein. It was further observed that regulatory functions discharged by a body are not per se amenable to the jurisdiction of the Commission.
The Commission finally observed that:
In the present matter, when the BCI appears to be discharging its regulatory functions, it cannot be said to be an ‘enterprise’ within the meaning of Section 2(h) of the Act and consequently, the allegations made in relation to discharge of such functions which appears to be non-economic in nature, may not merit an examination within the provisions of Section 4 of the Act.
While addressing whether or not there is a prima facie case of violation of the respective section of the Act, the Commission observed that, there exists no prima facie case under the arrangements of Section 4 of the Act and the data recorded is directed to be closed forthwith against the Opposite Parties under Section 26(2) of the Act. Thus, no case for an award for relief(s) as looked for under Section 33 of the Act emerges and thus it was dismissed.
The complaint against the BCI was dismissed on no grounds for a prima facie case of violation of Section 4 of the Competition Act, 2002.
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The judgement came further to a complaint filed with Competition Commission of India alleging that the Bar Council of India was indulging in an abuse of its dominant position through Clause 28 of the Rules of Legal Education, 2008 prescribing age limitation for entry into legal education.