Full Judgment Text
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PETITIONER:
AELTEMESH REIN, ADVOCATE, SUPREME COURT OF INDIA
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT04/08/1988
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
DUTT, M.M. (J)
CITATION:
1988 AIR 1768 1988 SCR Supl. (2) 223
1988 SCC (4) 54 JT 1988 (3) 275
1988 SCALE (2)301
CITATOR INFO :
D 1990 SC 334 (111)
ACT:
Constitution of India, 1950: Article 32- Mandamus- Scope
of- Enforcement of statute or provisions therein left to
discretion of Government- Whether mandamus can be issued to
enforce them.
%
Advocates Act, 1961: Section 30- Right of Advocates to
practice in all courts, tribunals, etc.- Enforcement of-
Necessity for.
Prisoners (Attendance in courts) Act, 1955: Handcuffing
of accused- Resort to- Union of India directed to frame
rules and guidelines them to States and Union Territories.
HEADNOTE:
In the writ petition filed before this Court regarding
alleged handcuffing of a practising advocate, contrary to
law, while he was being taken to the court after he had been
arrested on the charge of a criminal offence, it was alleged
that the Union Government and the Delhi Administration had
not issued necessary instructions to the police authorities
with regard to the circumstances in which an accused,
arrested in a criminal case, could be handcuffed or fettered
in accordance with the judgment of this Court in Prem Kumar
Shukla v. Delhi Administration, [1980] 3 SCR 856. The
question whether this Court can issue a writ for bringing
into force section 30 of the Advocates’ Act, 1961, providing
the right to every advocate, whose name was entered in the
State roll to practice throughout the territories to which
the Act extended before the Courts, Tribunals and other
authorities or persons referred to in the Scction, in view
of s. 3(1) of the Act empowering Central Government to
decide the dates on which various provisions of the Act,
including s. 3. should be brought into force, also came up
for consideration.
On behalf of the respondents, it was submitted that it
was for the Union of India to issue necessary instructions
regarding handcuffing of an accused to all the State
Governments and the Governments of Union Territories in
accordance with the judgment in P.K. Shukla’s case, and that
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this Court had jurisdiction to issue a writ directing the
Central Government to consider the question of bringing into
force section 30 of the Advocates’ Act.
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Disposing of the writ petition,
HELD: 1.1 It is not open to this Court to issue a writ
in the nature of mandamus to the Central Government to bring
a statute or a statutory provision into force when according
to the said statute the date on which it should be brought
into force is left to the discretion of the Central
Government. [229D]
A. K. Roy, etc. v. Union of India and Another, [1982] 2
SCR 272, followed.
However, this Court is of the view that this cannot come
in the way of this Court issuing a writ in the nature of
mandamus to the Central Government to consider whether the
time for bringing s. 30 of the Advocates Act, 1961 into
force has arrived or not. [229E]
1.2 Every discretionary power vested in the Executive
should be exercised in a just, reasonable and fair way. That
is the essence of the rule of law. [229F]
In the instant case, the Act was passed in 1961 and
nearly 27 years have elapsed since it received the assent of
the President of India. In several conferences and meetings
of lawyers resolutions have been passed in the past
requesting the Central Government to bring into force
section 30 of the Act. It is not clear whether Central
Government has applied its mind at all to the question
whether s. 30 of the Act should be brought into force.
[229F-G]
Even today there are laws in force in the country which
impose restrictions on the fight of an advocate to appear
before certain courts, tribunals and authorities. ln many of
the cases which come up before the Courts or Tribunals
before which advocates cannot appear, as of right, questions
of law affecting the rights of individuals arise for
consideration and they need the assistance of advocates. We
have travelled a long distance from the days when it was
considered that the appearance of a lawyer on one side would
adversely affect the interests of the parties on the other
side. The legal Aid and Advice Boards, which are functioning
in different States, can now be approached by people
belonging to weaker sections, such as, Scheduled Castes,
Scheduled Tribes, women, labourers etc. for legal assistance
and for providing the services of competent lawyers to
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appear on their behalf before the Courts and Tribunals in
which they have cases. In these circumstances prima facie
there is no justification for not bringing into force s. 30
of the Act. [227D, G-H, 228A-B]
1.3 Even though the power under s. 30 of the Advocates’
Act is discretionary, this Court is of view that the Central
Government should be called upon to consider within a
reasonable time the question whether it should exercise the
discretion one way or the other having regard to the fact
that more than a quarter of century has elapsed from the
date on which the Act received the assent of the President
of India. [230A]
A writ in the nature of mandamus will issue to the
Central Government to consider within a period of six months
whether s. 30 of the Act should be brought into force or
not.
2. The Union of India is directed to frame rules or
guidelines as regards the circumstances in which handcuffing
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of the accused should be resorted to in conformity with the
judgment of this Court in Prem Shankar Shukla v. Delhi
Administration, and to circulate them amongst all the State
Governments and the Government of Union Territories within
three months.[226E]
Prem Shankar Shukla v. Delhi Administration, [1980] 3
SCR 855, referred to.
JUDGMENT:
ORIGINAL CRIMINAL JURISDICTION: Writ Petition (Crl) No.
163 of 1988.
(Under Article 32 of the Constitution of India).
Petitioner-in-person.
K. Parsaran, Attorney General, Kuldip Singh, Additional
Solicitor General and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was deliver by
VENKATARAMIAH, J. On the basis of the allegations made
in the above Writ Petition at the time of the preliminary
hearing the Court felt that notice should be issued to the
Union of India regarding two matters and accordingly the
court made an order that the Union Government shall show
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cause (i) why it should not be directed to implement
faithfully the decision of this Court in Prem Shankar Shukla
v. Delhi Administration, [1980] 3 SCR 855 as regards the
handcuffing of the accused arrested under the provisions of
the Criminal Law; and (ii) why it should not be directed to
consider the question of issuing a Notification bringing
section 30 of the Advocates Act, 1961 (hereinafter referred
to as ’the Act’) into force since already more than 25 years
had elapsed from the date of the passing of the Act.
The first question referred to above arose on account of
the allegations relating to the alleged handcuffing of an
advocate practising in Delhi contrary to law while he was
being taken to the Court of the Metropolitan Magistrate at
Delhi after he had been arrested on the charge of a criminal
offence. It is urged that the Union Government and the Delhi
Administration had not issued necessary instructions to the
police authorities with regard to the circumstances in which
an accused, arrested in a criminal case, could be handcuffed
or fettered in accordance with the judgment of this Court in
Prem Shankar Shukla v. Delhi Administration, (supra). The
learned Attorney General of India very fairly conceded that
it was for the Union of India to issue necessary
instructions in this behalf to all the States Governments
and the Governments of Union Territories. We accordingly
direct the Union of India to frame rules or guidelines as
regards the circumstances in which handcuffing of the
accused should be resorted to in conformity with the
judgment of this Court referred to above and to circulate
them amongst all the State Governments and the Governments
of Union Territories. This part of the order shall be
complied with within three months.
We shall now take up for consideration the second
question referred to above. The Advocates Act, 1961 received
the assent of the President of lndia on the 19th of May,
1961. Sub-section (3) of section 1 of the Act provides that
it shall in relation to the territories other than those
referred to in sub-section (4) come into force as the
Central Government may by notification in the Official
Gazette appoint and different dates may be appointed for
different provisions of the Act. Chapters I, II and VII of
the Act were brought into force on 16.8.1961, Chapter III
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and section 50(2) on 1.12.1961, section 50(1) on 15.12.1961,
sections 51 and 52 on 24.1.1962, section 46 on 29.3.1962,
section 32 and Chapter VI (except sections 50(1) and (2),
51, 52 and 46 which had already come into force) on
4.1.1963, Chapter V on 1.9.1963 and sections 29, 31, 33 and
34 of Chapter IV of the Act on 1.6.1969. Section 30 of the
Act, with which we are concerned, has not yet been brought
into force. Section 30 of the Act reads thus:
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"30. Right of advocates to practise-Subject to the
provisions of this Act, every Advocate whose name is entered
in the State roll shall be entitled as of right to practise
throughout the territories to which this Act extends-
(i) in all courts including the Supreme Court,
(ii) before any tribunal or person legally authorised to
take evidence; and
(iii) before any other authority or person before whom
such advocate is by or under any law for the time being in
force entitled to practise."
When section 30 of the Act is brought into force every
advocate whose name is entered in the State roll will be
entitled as of right to practise throughout the territories
to which the Act extends, before the Courts, Tribunals and
other authorities or persons referred to therein. Even today
there are laws in force in the country which impose
restrictions on the right of an advocate to appear before
certain Courts, Tribunals and authorities. Section 36(4) of
the Industrial Disputes Act, 1947 provides that in any
proceeding before a Labour Court, Tribunal or National
Tribunal a party to a dispute may be represented by a legal
practitioner with the consent of the other parties to the
proceeding and with the leave of the Labour Court, Tribunal
or National Tribunal, as the case may be. Section 13 of the
Family Courts Act, 1984 provides that no party to a suit or
proceeding before a Family Court shall be entitled, as of
right, to be represented by a legal practitioner. There is a
proviso to the said scction whereunder if the Family Court
considers it necessary in the interests of justice it may
seek the assistance of a legal expert as amicus curiae.
There are certain land tribunals constituted under some of
the Acts which are in force in certain States before which
advocates cannot appear at all. In many of the cases which
come up before the Courts or Tribunals before which
advocates cannot appear as of right complicated questions of
law affecting the rights of individuals arise for
consideration and they need the assistance of advocates. We
have travelled a long distance from the days when it was
considered that the appearance of a lawyer on one side would
adversely affect the interests of the parties on the other
side. The Legal Aid and Advice Boards, which are functioning
in different States, can now be approached by people
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belonging to weaker sections, such as, Scheduled Castes,
Scheduled Tribes, women, labourers etc. for legal assistance
and for providing the services of competent lawyers to
appear on their behalf before the Courts and Tribunals in
which they have cases. In these circumstances prima facie
there appears to be now no justification for not bringing
into force section 30 of the Act.
It is no doubt true that the Central Government has been
given the power by Parliament to appoint the date on which
any of the provisions of the Act shall come into force by
sub-section (3) of section 1 of the Act and the said
provision does not lay down any objective standards for the
determination of the date on which any of the specific
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provisions of the Act should be brought into force. The
question for consideration is whether this Court can issue a
writ in the nature of mandamus to the Central Government to
bring section 30 of the Act into force. Dealing with a
similar question a Constitution Bench of this Court in A.K.
Roy, etc. v. Union of India & Another, [1982] 2 SCR 272 has
taken the view that a writ in the nature of mandamus
directing the Central Government to bring a statute or a
provision in a statute into force in exercise of powers
conferred by Parliament in that statute cannot be issued.
Chandrachud, C.J., who spoke for the majority of the
Constitution Bench has observed at pages 314 to 316 of the
Report thus:
"But we find ourselves unable to intervene in a matter
of this nature by issuing a mandamus to the Central
Government obligating it to bring the provisions of section
3 into force. The Parliament having left to the unfettered
judgment of the Central Government the question as regards
the time for bringing the provisions of the 44th Amendment
into force, it is not for the Court to compel the Government
to do that which, according to the mandate of the
Parliament, lies in its discretion to do when it considers
it opportune to do it. The executive is responsible to the
Parliament and if the Parliament considers that the
executive has betrayed its trust by not bringing any
provision of the Amendment into force, it can censure the
executive. It would be quite anomalous that the inaction of
the executive should have the approval of the Parliament and
yet we should show our disapproval of it by issuing a
mandamus ................... But, the Parliament has left
the matter to the judgment of the Central Government without
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prescribing any objective norms. That makes it difficult for
us to substitute our own judgment for that of the Government
on the question whether section 3 of the Amendment Act
should be brought into force ..... It is for these reasons
that we are unable to accept the submission that by issuing
a mandamus, the Central Government must be compelled to
bring the provisions of section 3 of the 44th Amendment into
force ..... If only the Parliament were to lay down an
objective standard to guide and control the discretion of
the Central Government in the matter of bringing the various
provisions of the Act into force, it would have been
possible to compel the Central Government by an appropriate
writ to discharge the function assigned to it by the
Parliament."
The effect of the above observations of the
Constitution Bench is that it is not open to this Court to
issue a writ in the nature of mandamus to the Central
Government to bring a statute or a statutory provision into
force when according to the said statute the date on which
it should be brought into force is left to the discretion of
the Central Government. As long as the majority view
expressed in the above decision holds the field it is not
open to this Court to issue a writ in the nature of mandamus
directing the Central Government to bring section 30 of the
Act into force. But, we are of the view that this decision
does not come in the way of this Court issuing a writ in the
nature of mandamus to the Central Government to consider
whether the time for bringing section 30 of the Act into
force has arrived or not. Every discretionary power vested
in the Executive should be exercised in a just, reasonable
and fair way. That is the essence of the rule of law. The
Act was passed in 1961 and nearly 27 years have elapsed
since it received the assent of the President of India. In
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several conferences and meetings of lawyers resolutions have
been passed in the past requesting the Central Government to
bring into force section 30 of the Act. It is not clear
whether the Central Government has applied its mind at all
to the question whether section 30 of the Act should be
brought into force. In these circumstances, we are of the
view that the Central Government should be directed to
consider within a reasonable time the question whether it
should bring section 30 of the Act into force of not. If on
such consideration the Central Government feels that the
prevailing circumstances are such that section 30 of the Act
should not be brought into force immediately it is a
different matter. But it cannot be allowed to leave the
matter to lie over without applying its mind to the said
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question. Even though the power under section 30 of the Act
is discretionary, the Central Government should be called
upon in this case to consider the question whether it should
exercise the discretion one way or the other having regard
to the fact that more than a quarter of century has elapsed
from the date on which the Act received the assent of the
President of India. The learned Attorney General of India
did not seriously dispute the jurisdiction of this Court to
issue the writ in the manner indicated above.
We, therefore, issue a writ in the nature of mandamus
to the Central Government to consider within a period of six
months whether section 30 of the Act should be brought into
force or not. The Writ Petition is accordingly disposed of.
N.P.V. Petition disposed of.
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