Full Judgment Text
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PETITIONER:
IN v. LILY ISABEL THOMAS
Vs.
RESPONDENT:
DATE OF JUDGMENT:
14/01/1964
BENCH:
AYYANGAR, N. RAJAGOPALA
BENCH:
AYYANGAR, N. RAJAGOPALA
SINHA, BHUVNESHWAR P.(CJ)
SUBBARAO, K.
DAYAL, RAGHUBAR
MUDHOLKAR, J.R.
CITATION:
1964 AIR 855 1964 SCR (6) 229
CITATOR INFO :
R 1968 SC 888 (8)
ACT:
Supreme Court Rules-"Right to practise" if includes "right
to act" --Rule making power--If conflicts with legislative
power of Parliament--Supreme Court Rules, 1950 (as amended
in 1962), O. IV. rr. 16, 17--Validity of--Constitution of
India, Art. 145--Advocates Act, 1961 (25 of 1961) ss. 52,
58(3).
HEADNOTE:
The petitioner was enrolled in the Madras High Court under
the Indian Bar Councils Act, and later admitted to the rolls
of this Court under the Supreme Court Rules. In this
petition, it was contended that under s. 58(3) of the
Advocates Act, the petitioner was entitled "as of right to
practise" in this Court, and the "right to practise"
included not merely the right to plead but also to act; that
the rules made-0. IV rr. 16 & 17 of the Supreme Court Rules
are invalid; and that that by a rule made under Art. 145
(1)(a) this Court could neither entitle a person to practice
nor impose qualifications as to the right to practise, these
matters being entirely within entry 77 and therefore
exclusively for parliamentary legislation.
HELD: (i) The words "right to practise" would in its
normal connotation take in not merely right to plead but the
right to act as well and if no rules had been made by the
Supreme Court restricting the right to act, the petitioner
could undoutedly have had a right both to plead as well as
to act.
Ashwani Kumar Ghosh v. Arabinda Bose, [1953] S.C.R. 1,
referred to.
(ii) Under s. 58(3) of the Advocates Act, the right
conferred on Advocates enrolled under the Bar Councils Act
to practise in the Supreme Court is made subject to any
rules made by this Court. Section
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52 of the Advocates Act specifically saves the powers of
this Court to make rules under Art. 145. In view of the
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saving, repeated if s. 52 there is no question of the rule
restricting the right to act to a certain class of advocates
as being contrary to a law made by Parliament.
(iii) On the express terms of Art. 145(1)(a) rules 16 &
17 of 0. IV are valid and within the rule making powers of
this Court. This Court can by its rules make provision
prescribing qualifications entitling persong to practise
before it, and Parliament can do likewise. ’Mere is no
question of a conflict between the legislative power of
Parliament and the rule-making power of this Court, because
by reason of the opening words of Art. 145, any rule made by
this Court would have operation only subject to laws made by
Parliament on the subject of the entitlement to practise.
JUDGMENT:
ORIGINAL JURISDICTION : Petition No. 42 of 1963.
Under Article 32 of the Constitution for the enforcement of
fundamental rights.
The petitioner appeared in person.
S. V. Gupte, Additional Solicitor-General, N. S. Bindra
and R. H. Dhebar, for the Hon’ble Judges of the Supreme
Court.
A. V. Ranganadham Chetty, A. Vedavalli and A. V. Rangam,
for the intervener (W. C. Chopra).
January 14, 1964. The Judgment of the Court was delivered
by
AYYANGAR J.-The proper construction of Art. 145(1) (a) of
the Constitution in the context of a prayer for a
declaration that rule 16 of Order IV of the Supreme Court
Rules as invalid is the principal point raised in this
petition which has been filed by an Advocate who under the
Advocates Act, 1961, is entitled to practise in this Court.
The petitioner was enrolled in the Madras High Court on
November 15, 1955 under the Indian Bar Councils Act, 1926
and was admitted to the rolls of this Court on October 29,
1960 under Order IV of the Supreme Court Rules as they then
stood. She states that as an Advocate entitled to practise
in this Court, she is entitled as of right not merely to
plead but also to act, and that the rules of this Court
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which prescribe qualifications before she could be permitted
to act are therefore invalid. The prayer which she makes by
her petition is therefore for a declaration that rule 16(1)
of Order IV of the Supreme Court Rules as amended in 1962
which contains this prescription of qualifications be
declared ultra vires of this Court and a further declaration
that she is entitled to practise as an Advocate on record in
this Court without conforming to the requirements now im-
posed by the impugned rule.
Rule 16 whose validity is challenged runs:
"16. No Advocate shall be qualified to be
registered
as an Advocate on Record unless he-
(1) has undergone training for one year with
an Advocate on Record approved by the Court,
and has thereafter passed such tests as may be
held by the Court for Advocates who apply to
be registered as Advocates on Record,
particulars whereof shall be notified in the
Gazette of India from time to time; provided
however, that an Attorney shall be exempted
from such training and test;
(2) has an office in Delhi within a radius
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of 10 miles from the Court House and gives an
undertaking to employ, within one month of his
being registered as Advocate on Record. a
registered clerk; and
(3) pays a registration fee of Rs. 25".
It might be mentioned that under the Rules though every
Advocate whose name is maintained in the common roll of
Advocates prepared under s. 20 of the Advocates’ Act, is
entitled to plead, only those Advocates who are registered
as "Advocates on record" are entitled to act as well, for
rule 17 of Order provides :
"17. An Advocate on Record shall be entitled
to act as well as plead for any party in a
proceeding on his filing in the proceeding a
memorandum of appearance accompanied by a
Vakalat-
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nama duly executed by the party in the pres-
cribed form.
No Advocate other than an Advocate on Record
shall be entitled to file an appearance or act
for a party in the Court."
The contention urged by the petitioner who argued her case
in person and presented the points arising with ability and
moderation, is that under s. 58(3) of the Advocates Act
which reads
"58. (3) Notwithstanding anything in this Act,
every person who, immediately before the 1st
day of December, 1961, was an advocate on the
roll of any High Court under the Indian Bar
Councils Act, 1926 or who has been enrolled as
an advocate under this Act shall, until
Chapter IV comes into force, be entitled as of
right to practise in the Supreme Court,
subject to the rules made by the Supreme Court
in this behalf"
she is entitled "as of right to practise" in this Court. and
she claims that the "right to practise" would include not
merely the-right to plead, but also the right to act. She
is right so far. Her further submission is as regards the
scope and content of the rules which might lawfully be made
by this Court. Undoubtedly, if there were no rules made by
the Supreme Court or if, as the petitioner contends, the
rules now made-Order IV Rules 16 and 17-are invalid the
petitioner would be entitled not merely to plead as she is
now entitled to, but also to act which latter she is now
prevented by rule 17 unless she has complied with the
requirements of rule 16.
The question then for consideration is whether the impugned
rules are valid. This depends upon the proper construction
of Art. 145(1)(a) by virtue of which the impugned rule has
been framed, which reads:
"145. (1) Subject to the provisions of any law
made by Parliament, the Supreme Court may from
time to time, with the approval of the
President,
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make rules for regulating generally the
practice
and procedure of the Court including-
(a) rules as to the persons practising
before the court;"
As regards this Article there are two matters to which
attention might be directed. By the opening words of the
Article the rules made by this Court are subject to the
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provision of any law made by Parliament, so that if there is
any provision in a law made by Parliament by which either
the right to make the rule is restricted or which contains
provisions contrary to the rules, it is beyond dispute that
the law made by Parliament would prevail. It is the
submission of the petitioner that s. 58(3) quoted earlier,
is such a law made by Parliament and that the absolute
right. granted to persons in the position of the petitioner
to "practise as of right" cannot be controlled by rules made
by this Court. In this connection our attention was invited
to the decision of this Court in Aswini Kumar Ghosh and Anr.
v. Arabinda Bose and Anr(1). Here this Court explained what
the expression right to practise’ meant. It was laid down
that these words which occurred in the Supreme Court
Advocates (Practise in High Court Act, 1951 whose s. 2
enacted "Every Advocate of the Supreme Court shall be
entitled as of right to practise in any High Court whether
or not he is an Advocate of that High Court" meant that such
an Advocate was entitled not merely to plead but to act as
well, and that the enactment prevailed notwithstanding any
rule made by the High Courts of Calcutta and Bombay
restricting the right to act on the original sides of those
courts. The decision, however, does not carry the matter
far, because it was based on the inconsistency between "the
right to practise as of right" conferred by the enactment of
1951 and the saving as regards the rule making power of the
High Courts of Bombay and Calcutta to restrict "the right to
act" on the original side of those courts which was
contained in the Bar Councils Act 1926. This Court held
that it was a case of an implied repeal of that saving by
the later legislation.
(1) [1953] S.C.R. 1
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Nevertheless the petitioner, as stated earlier, is certainly
right in her submission that the words ’right to practise’
would in its normal connotation take in, not merely right to
plead but the right to act as well and that is why we said
that if no rules had been made by the Supreme Court res-
tricting the right to act, the petitioner could undoubtedly
have a right both to plead as well as to act.
But we have already pointed out that under s. 58(3) of the
Act, the right conferred on Advocates enrolled under the Bar
Councils Act to practise in the Supreme Court is made
subject to any rules made by this Court. To reinforce this
position there is a saving enacted by s. 52 of the Advocates
Act which specifically saves the powers of this Court to
make rules under Art. 145. Section 52 reads:-
"52. Nothing in this Act shall be deemed to
affect the power of the Supreme Court to make
rules under article 145 of the Constitution-
(a) for laying down the conditions subject
to which a senior advocate shall be entitled
to practise in that Court;
(b) for determining the persons who shall be
entitled to act in that behalf."
In view of the saving which is repeated in s. 52 there is no
question of the rule restricting the right to act to a
certain class of advocates as being contrary to a law made
by Parliament. The only question for consideration is
whether Art. 145 (1) (a) is sufficient to empower this Court
to frame the impugned rules.
The argument addressed to us with considerable earnestness
was that under the Article the rules to be framed under the
items (a) to (j) were all to be framed for regulating the
practice and procedure of the Court which she urged indi-
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cated the underlying purpose with which the rule making
power was vested in the Court. Secondly she urged that if
head (a) -in sub-Article (1) reading "rules as to the
persons practising before the Court", were treated as an
independent -subject, entirely, divorced from the context of
the opening words "practice and procedure of the Court",
even then the
235
power to make the rule was confined to the regulation of the
conduct of the persons practising i.e. entitled under the
law to practising and so practising before the Court.
Though a number of decisions were cited to us as to what was
meant by ’practise and procedure of the Court’ we do not
think it useful or necessary to refer to them. They would
have been relevant and might require serious consideration
if the entire Power to make the rule was to depend merely on
the words "regulating the practice and procedure of the
Court" but the Article specifically makes provision enabling
rules to be made "as to persons practising before the
Court." We are inclined to read item (a) as an independent
head of rule making power and not as merely a part of a
power to make rules for "regulating the practice and
procedure of the Court." The word ’including’ which precedes
the enumeration of the items (a) to (i) as well as the
subject matter of item (a), stamp it as an independent head
of power.
We do not, therefore, propose to deal with what exactly
would have been the content of a "regulation of practice and
proceedure." but shall proceed to consider the meaning of
the words "Rules as to the persons practising before the
Court" because if the rules now impugned could be justified
as within this power their validity cannot be impeached.
Now as regards these words in item (a) the submission of the
petitioner was two-fold : Firstly, she contrasted these
words with entry 77 in the Union List in Sch. VII the last
portion of which reads:
"Persons entitled to practise before the Supreme Court."
Relying on the contrast -between the two expressions "per-
sons practising" and "persons entitled to practise" the sub-
mission was that the words "persons practising before the
Court" was narrower and gave this Court power to frame rules
only to determine the manner in which persons who had
obtained a right to practise under a law made by Parliament
by virtue of its power under entry 77 could exercise
236
that right. In this connection she drew a distinction bet-
ween ’being entitled to practise’ which would include deter-
mining or prescribing the qualifications that a person
should possess before becoming entitled to practise, which
she urged was the subject matter of entry 77, and a rule as
to "a person practising before a court" which was the second
stage after the right to practice had been obtained by
Parliamentary legislation. In other words, the submission
was that by a rule made under Art. 145(1)(a) this Court
could neither entitle a person to practise nor impose
qualifications as to the right to practise-these being
matters entirely within entry 77 and therefore exclusively
for parliamentary legislation.
We feel unable to accept this argument. We do not agree
that the words "persons practising before the Court" is
narrower than the words "persons entitled to practise before
the Court". The learned Additional Solicitor-General was
well-founded in his submission that if, for instance, there
was no law made by Parliament entitling any person to
practise before this Court, the construction suggested by
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the applicant would mean that this Court could not make a
rule prescribing qualifications for persons to practise in
this Court. In this connection it is interesting to notice
that the words used in Art. 145(1)(a) have been taken
substantially from s. 214(1) of the Government of India Act,
1935. That section ran, to quote the material words:
"The Federal Court may from time to time, with
the approval of the Governor-General in his
discretion make rules of Court for regulating
generally the practice and procedure of the
Court including rules as to the persons
practising before the Court........
The Government of India Act, 1935 did not in its legislative
lists have a provision like as we have in entry 77 of List I
(vide entry 53 of List I). The Federal Court immediately on
its formation made rules and under Order IV of those rules
provision was made prescribing qualifications for the
237
enrolment as Advocates of the Federal Court. Advocates
entitled to practise in the High Courts with a standing of 5
years on the rolls of High Court and who satisfied certain
requisite conditions were entitled to be enrolled as Advo-
cates, while for enrolment as Senior Advocates a standing of
10 years as an Advocate of a High Court Bar was prescribed.
We are pointing this out only for the purpose of showing
that the words "as to the persons practising before the
Court" were then used in a comprehensive sense so as to
include a rule not merely as to the manner of practice but
also of the right to practise or the entitlement to
practice. Those words which are repeated in Art. 145(1)(a)
have still the same content. We ought to add that there is
no anomaly involved in the construction that this Court can
by its rules make provision prescribing qualifications
entitling persons to practise before it, and that Parliament
can do likewise. There is no question of a conflict between
the legislative power of Parliament and the rule-making
power of this Court, because by reason of the opening words
of Art. 145, any rule made by this Court would have
operation only subject to laws made by Parliament on the
subject of the entitlement to practise. We are, therefore,
clearly of the opinion that on the express terms of Art.
145(1)(a) the impugned rules 16 and 17 are valid and within
the rule-making power.
The learned Additional-Solicitor made a further submission
that the rule could be justified under the inherent powers
of the Court and relied for this purpose on the decision of
this Court in re: Sant Ram [1960] 3 S.C.R. 499 where at
pages 504, 505 the inherent powers of this Court have been
referred to. In the view we take about the construction of
Art. 145(1)(a) we do not think it necessary to rest our
decision on the inherent powers of this Court to frame a
rule of this sort.
The petition, therefore, fails and is rejected.
Petition dismissed.
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