IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.03.2014
Coram
THE HON'BLE MR. SATISH K.AGNIHOTRI, ACTING CHIEF JUSTICE
AND
The Hon'ble Mr. Justice T.S. SIVAGNANAM
W.P. No.4843 of 2014
R.Muthukrishnan ... Petitioner
Vs
Union of India,
Citation; AIR 2014 Madras 133
The petitioner in this writ petition is an Advocate and the writ petition has been designed as a Public Interest Litigation with a prayer to issue a writ of Declaration, declaring that the Direct Benefit Transfer Scheme for Liquefied Petroleum Gas announced by the Union of India is inconsistent with public law and the constitutional requirements.
2. When the case was posted for admission on 17.03.2014, the petitioner appearing in person appeared with his robes. The petitioner was asked as to whether he being the petitioner in this writ petition would be entitled to argue with his robes. The petitioner insisted that he is an Advocate enrolled with the Bar Council of Tamil Nadu and in terms of the Rules framed under the Advocates Act, in particular the Rules governing Advocates given in Appendix I of the Rules, is duty bound to wear Bands and Gown while appearing, failing which he would be contravening the statutory provisions and therefore, was entitled to represent the matter with his robes. On such insistent, this Court framed the following preliminary question for consideration:-
whether an Advocate is entitled to argue in a PIL with his robes on the ground that he being an advocate, is entitled to argue with his robes when he is a petitioner in person in a Public Interest Litigation.
3. We have heard the petitioner on the above preliminary question and considered the matter.
4. An identical question came up for consideration in the case of T.Venkanna vs. The Hon'ble High Court of Mysore reported in AIR 1973 Mysore 127, wherein the petitioner was a practising Advocate, who offered himself for being considered by the High Court for recommendation to be appointed as a District Judge. Since he was not called for interview, he filed a writ petition before the then High Court of Mysore. The petitioner was not represented by counsel and he appeared in person and wanted to argue his own cause. The Division Bench which heard the matter informed him to disrobe himself and then address the Court. However, the petitioner insisted that he should be heard without being required to remove his gown. The Division Bench dismissed the writ petition holding that the petitioner being an Advocate in his own cause, he is not entitled to exercise the privilege of an Advocate and address the Court from "the Bar". An application was filed by the petitioner to recall the said order. In the said application, the petitioner was represented by a counsel and the Division Bench informed the counsel that if the petitioner complies with the directions of the Court and argues without his robes, he will be permitted to do so, after recalling the earlier order. The counsel who appeared in the said application informed the Court that he has been engaged only to argue the application and not the main matter for admission and the petitioner is not prepared to argue unless the Bench permits him to argue with his robes on. There upon, the question as to whether an Advocate appearing as litigant in person whether would be entitled to argue with his robes on from the Advocates' table was taken up for consideration. In fact, a some what similar contention as raised by the petitioner herein was raised before the High Court of Mysore, though not to the extent pleaded therein. Before the High Court of Mysore, reliance was placed on Section 30 of the Advocates Act, 1961, and submitted that every Advocate whose name is entered in the common roll shall be entitled as of right to practise throughout the territory to which the Act extends in all courts including the Supreme Court.
5. Further, it was contended that Section 34(1) of the Act, empowers the High Court to make rules laying down the conditions subject to which an advocate shall be permitted to practice in the High Court and the Courts subordinate thereto and Rule 12 of the said Rules prescribes the dress to be worn by advocates appearing before the High Court and subordinate courts and there is no provision under the Act or the Rules that an Advocate appearing before the Court, when he argues his own case he should remove his Gown and that in the absence of such a Rule, the petitioner has the right to wear his Advocate's robes, when he argues his own case. The Division Bench pointed out that the word 'Advocate' is a technical term in India and other countries whose legal system is based on the Roman law. The corresponding name in the English law courts is 'Counsel' or 'Barrister'. It was pointed out that an Advocate in law, is a person who practices the profession of pleading the cause of another before a court or a Tribunal and the universal practice in India and England has been that where an Advocate or Barrister appears before the Court as a litigant in person, he must not address the Court from the Advocates' table or in robes, but from the same place and in the same way as an ordinary member of the public. Quoting from the book 'Barrister-at-law' by Merchant, wherein it has been stated that 'Barristers cannot be heard in court as Advocates unless they are robed' and a 'Barrister' who is a litigant cannot appear both as counsel and as litigant and that he must elect either to conduct the case entirely as litigant in person or to abandon the case entirely to his counsel. It was further observed that he cannot be heard to address the Court either after or before his counsel. Quoting from the book 'Conduct and Etiquette at the Bar' by W.W.Boulton, wherein it was observed that "Whilst a member of the Bar is entitled, like any other member of the public, to appear in person, it is improper for him whether instructed professionally or not to appear also as a counsel in a case in which he himself is a party, i.e., to wear robes or to sit in counsel's seats. It was further observed that a Barrister appearing in person has no more rights than any other complainant and he only differs from any other member of the public, when he is instructed by a solicitor on behalf of a client. The Division Bench also placed reliance on the decision of the House of Lords in the case of New Brunswick and Canada Rly. and Land Co. Ltd. v. Conybeare, (1862) 31 LJ Ch 297, wherein the House of Lords did not accede to the request of a Barrister to permit him to appear as junior counsel and be heard in his own behalf by holding that the Barrister must argue his own case in person or appear by counsel.
6. The Hon'ble Supreme Court in the case of Vidya Verma v. Shiv Narain, reported in AIR 1956 SC 108, which was a petition under Article 32 of the Constitution for issuance of a writ of "Habeas Corpus" filed by one Mr.R.V.S.Mani, an Advocate on behalf of Smt.Vidya Verma. Mr. Mani had no power of attorney from the lady and when the office pointed out that he could not present a petition without producing necessary authority, he amended the petition and described himself as the next friend of the lady. When Mr.Mani appeared before the Hon'ble Supreme Court, he was robed. He was asked to clarify his position and when he said that he had no power-of-attorney and he was appearing in a private capacity as a next friend, he was told to address the Court without his robes. On the adjourned hearing Mr.Mani appeared in person unrobed as directed, but with Advocate on record sitting by his side, he sought permission to address the Court himself. However, the Hon'ble Supreme Court declining to hear him, unless he discharged an Advocate on record. This decision of the Hon'ble Supreme Court was relied on by the Division Bench of the High Court of Mysore and it was held that it is clear that the practice in India has been that where an Advocate is himself a litigant and appeared as a litigant in person, he must not address the Court from the Advocates' table or with robes on, but from the same place and in the same way as an ordinary member of the public. While considering the provisions of the Advocates Act, the Division Bench observed that Section 30 of the Advocates Act confers the right on every Advocate, whose name is entered in the common roll to practise throughout the territory to which the Act extends in all courts including the Supreme Court and the Rules framed by the Court under Section 34 of the Act prescribes the mode of dress for Advocates appearing before the Court. Thus, when an Advocate whose name is entered in the rolls of the Bar Council appears before the Court as a litigant in person, he is not exercising any right under Section 30 of the Act. Therefore, the Division Bench held that there is no question of the right of the petitioner under the Act arose; no right conferred under the Act has been denied to him. It was further pointed out that the word 'practise' means 'the exercise of a profession' and when an Advocate is a litigant in person, he does not practise his profession and therefore he cannot be permitted to argue with his robes on from the Advocates' table and he can address the Court from the same place and in the same way as an ordinary member of the public.
7. In the case of Major K.Mathews (Retd.)., vs. Registrar General, High Court of Judicature at Madras & Ors., reported in AIR 2003 Madras 411, similar question arose for consideration. The petitioner therein was appearing party-in-person and he filed a writ petition to declare that an ordinary member of the public like him who is conducting a case, party-in-person, he is entitled to be seated in the Court and to make use of the table available in the Court room and such liberties should not be interfered with or questioned by the members of the Bar. His Lordship Mr.Justice P.Sathasivam, (as he then was) after taking into consideration the decision of the Division Bench of the Mysore High Court in the case of T.Venkanna, (supra) held that litigant/party appearing-in-person before the Court for their own causes cannot claim the same privileges/rights being given to the members of the Bar/Advocates, and they cannot occupy/use the chairs, tables provided for the Advocates, however, they (parties appearing in person) are entitled to be provided with a convenient place to address the Court and highlight their cause and with such observation, the writ petition was disposed of.
8. Similar question arose for consideration before the Karnataka High Court in the case of M.C.S.Barna vs. C.B.Ramamurthy, reported in 2002 CRI L.J.2859, the petitioner therein was a practising Advocate at Bangalore and he challenged an order passed by the Criminal Court, which rejected his application filed under Section 319 Cr.P.C. The petitioner preferred to argue his own case by wearing robes and identical question came up for consideration before the Karnataka High Court. It was contended by the petitioner therein that the judgment in the case of T.Venganna, (supra), has not laid down the correct legal position and it requires reconsideration in the hands of the Larger Bench. The Court while considering the submissions made by the petitioner therein pointed out that the Lordships of the then Mysore High Court namely Mr.Justice G.K Govinda Bhat and Mr.Justice V.S.Malimath, were considering the provisions of Section 30 of the Advocates Act and though there are certain amendments to the Act, definition of 'Advocate' and 'Legal Practitioner" defined in Section 2 of the Advocates Act, remain unaltered. That the Advocates Act is an Act to amend and consolidate the law relating to Legal Practitioners and to provide in the constitution of Bar Councils and All India Bar. By referring to the decision of the Hon'ble Supreme Court in the case of Salil Dutta vs. T.M. and M.C. Private Limited reported in (1993) 2 SCC 165, wherein the Apex Court observed that the Advocate is the agent of the party, his acts and statements, made within the limits of authority given to him, are the acts and statements of the principal, i.e., the party who engaged him. It is true that in certain situations, the Court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or the misdemeanour of the Advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its Advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult. After referring to Sections 29 & 30 of the Advocates Act and the definition of 'Advocate', 'Pleader' etc., as per the Oxford Dictionary of Current English, rejected the contention of the petitioner therein holding that the enunciation made by the Division Bench in the case of T.Venkanna, (supra), leaves no doubt that the petitioner therein is not right in his submissions. Further, it was observed that the decision in the case of T.Venganna, (supra), has not been challenged and the pronouncements of the Apex Court cited have in fact confirmed the view taken by the then High Court of Mysore in T.Venkanna's, case and accordingly, the case was dismissed not only on merits, but also on the ground that the petitioner failed to disrobe himself while arguing the case.
9. In the case of High Court on its own Motion vs. N.B.Deshmukh reported in 2011 (2) Mh.L.J., 273, which arose out of a suo-moto contempt proceedings against the respondent/contemner, who was an Advocate. The contemner therein raised a similar contention as that of the petitioner herein stating that he shall appear in person in the robes of an Advocate. The respondent/contemner was informed that since he was appearing pursuant to show cause notice issued to him for having committed criminal contempt, he may appear as an ordinary litigant and not in robes. However, he declined to abide by the suggestions of the Division Bench and contended that he was a practising Advocate of the Court and he was well within his rights to appear in robes and if he failed to appear in robes, he may face disciplinary proceedings for having failed to abide by the dress code prescribed by the Bar Council. In fact, the petitioner before us raised a similar plea. On such contention being advanced, the Division Bench of the Bombay High Court heard the State Bar Council of Maharashtra and Goa, who took a categorical stand that since the respondent/contemner was facing show cause notice for having committed criminal contempt, even if he wants to appear in-person before the Court, he will have to do so, as any other ordinary litigant and he cannot appear in robes. Reliance was placed on the decision of the High Court of Mysore in the case of T.Venkanna (supra). While considering the submission of the respondent/contemner therein that if he failed to appear with his robes, he would be violating the dress code Regulation, the Division Bench pointed out that the Dress Code is for the persons, who have been granted "Sanad" to practice as an Advocate appearing for the litigant and when the Advocate himself is either espousing his own cause in the proceedings before the Court or facing contempt action, as per the long standing convention; which has taken the colour of rule of law, he cannot appear as an Advocate before the Court, but may appear as an ordinary litigant in person. Such person cannot claim any privileges available to Advocates appearing for the litigants before the Court and cannot be permitted to appear in robes before the Court. The Division Bench of the Bombay High Court agreed with the view taken by the then High Court of Mysore in the case of T.Venkanna (supra).
10. The petitioner placed strong reliance on the Rules framed by the Bar Council regarding the Dress Regulation. In our view, the contention raised by the petitioner is thoroughly misconceived. In the present case, the petitioner is appearing before the Court not as an Advocate of an any party, but on behalf of himself as he is the sole writ petitioner in the writ petition. Though the prayer in the writ petition is designed as a Public Interest Litigation, it is the specific case of the petitioner that he is also aggrieved and like him there are several others and therefore, he has filed this writ petition. If such is the case, we have no hesitation to hold that the petitioner himself is the litigant and he shall not be entitled to any rights and privileges as an Advocate while appearing in person for his own cause. The entire foundation of the arguments of the petitioner is wholly erroneous and therefore, the contentions raised by the writ petitioner deserves to be outrightly rejected.
11. The High Court of Gujarat in the case of Vinayakrao S.Desai vs. Interlink Petroleum Ltd., & Ors., reported in MANU/GJ/0250/2001, took a similar view by placing reliance on the case of T.Venkanna (supra), and Vidya Verma vs. Shiv Narain, (supra), and held that a person cannot appear or plead before a court of law in dual capacity, one as party and other as an Advocate and if an Advocate is appearing as party-in-person, he should in order to maintain the norms and decorum of the legal profession, appear before the Court of law as party in person putting off the band and robes prescribed for legal practitioner.
12. As pointed out earlier, the petitioner does not dispute the fact that he has filed this writ petition designed as a Public Interest Litigation, as he as an individual, is aggrieved by the policy of the Union of India with regard to the Direct Benefit Transfer Scheme for Liquefied Petroleum Gas and several others are also affected as the petitioner himself. If that be the case, the petitioner pleading his own cause though under the guise of a Public Interest Litigation cannot seek recourse to any of the provisions of the Advocates Act, more particularly Section 30 of the Act. Inasmuch as no question has arisen as regards the right of the petitioner under the provisions of the Advocates Act and no rights conferred on him under the Act has been denied to him, while he is appearing in person. The word "practise" connotes exercise of a profession and when the petitioner an Advocate is a litigant in person, he does not practise his profession and therefore, he is not entitled to argue his case with his robes.
13. In the light of the above discussion and the law laid down in the decisions cited supra, we have not hesitation to hold that the petitioner an Advocate appearing as a litigant in person is not practising his profession and he cannot be permitted to argue with his robes. Accordingly, the preliminary question framed supra is decided against the petitioner. The petitioner is afforded an opportunity to argue his case as petitioner-in-person without his robes.
Post the matter before the regular Court on 24.03.2014.
(S.K.A., A.C.J.) (T.S.S.J.)
21.03.2014
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