these Rules put an unreasonable restriction on his right to practice as an
Advocate and are also ultra vires the provisions of Section 30 of the
Advocates Act, 1961 (hereinafter referred to as the 'Act'). The High
Court of Allahabad has framed the Rules in question which came into
force on 15.09.1952. Chapter XXIV thereof relates to “Rules Framed
under Section 34(1) read with Section 16(2) of the Advocates Act, 1961”.
As we are concerned with the validity of Rule 3 and Rule 3A of the said
Chapter, the same are reproduced below:
“3. Advocate who is not on the Roll of Advocates :
An advocate who is not on the Roll of Advocate or the
Bar Council of the State in which the Court is situated,
shall not appear, act or plead in such Court, unless he
files an appointment along with an advocate who is on
the Roll of such State Bar Council and who is ordinarily
practicing in such Court.
In cases in which a party is represented by more than
one advocate, it shall be necessary for all of them to file
a joint appointment or for each of them to file a separate
one.
3-A. (i) Unless the Court grants leave, an Advocate
who is not on the Roll of Advocates in the High Court at
Allahabad or Lucknow shall not be allowed to appear,
act or plead in the High Court at Allahabad or Lucknow
as the case might be unless he files appointment along
with an Advocate who is on such roll for Allahabad
Cases at Allahabad and for Lucknow Cases at
Lucknow.
We, thus, are of the opinion that Rules 3 and 3A of the Allahabad High
Court Rules, 1952 and perfectly valid, legal and do not violate the right
of the appellant under Article 19(1)(g) of the Constitution of India. The
appeal, therefore, fails and is hereby dismissed.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6120 OF 2016
JAMSHED ANSARI .....APPELLANT(S)
VERSUS
HIGH COURT OF JUDICATURE AT
ALLAHABAD & ORS.
Dated:AUGUST 26, 2016.
A.K. SIKRI, J.
The appellant has challenged the judgment dated 28.04.2015
passed by the High Court of Judicature at Allahabad whereby writ
petition filed by the appellant has been dismissed. In the said writ
petition, the appellant had challenged the Constitutional validity of the
provisions of Rule 3 and Rule 3A of Chapter XXIV of the Allahabad High
Court Rules, 1952 (hereinafter referred to as the 'Rules'). The short
order of the High Court repelling the said challenge states that a similar
challenge had already been rejected by the same Court in Shashi Kant
Upadhyay, Advocate v. High Court of Judicature at Allahabad (Writ –
C. No. 65298 of 2014) decided on 26.03.2015.
2. Appellant's challenge to the aforesaid Rules is mainly on the ground that
these Rules put an unreasonable restriction on his right to practice as an
Advocate and are also ultra vires the provisions of Section 30 of the
Advocates Act, 1961 (hereinafter referred to as the 'Act'). The High
Court of Allahabad has framed the Rules in question which came into
force on 15.09.1952. Chapter XXIV thereof relates to “Rules Framed
under Section 34(1) read with Section 16(2) of the Advocates Act, 1961”.
As we are concerned with the validity of Rule 3 and Rule 3A of the said
Chapter, the same are reproduced below:
“3. Advocate who is not on the Roll of Advocates :
An advocate who is not on the Roll of Advocate or the
Bar Council of the State in which the Court is situated,
shall not appear, act or plead in such Court, unless he
files an appointment along with an advocate who is on
the Roll of such State Bar Council and who is ordinarily
practicing in such Court.
In cases in which a party is represented by more than
one advocate, it shall be necessary for all of them to file
a joint appointment or for each of them to file a separate
one.
3-A. (i) Unless the Court grants leave, an Advocate
who is not on the Roll of Advocates in the High Court at
Allahabad or Lucknow shall not be allowed to appear,
act or plead in the High Court at Allahabad or Lucknow
as the case might be unless he files appointment along
with an Advocate who is on such roll for Allahabad
Cases at Allahabad and for Lucknow Cases at
Lucknow.
(ii) The High Court shall prepare a Roll of Advocates
in Parts 'A' and 'B' of those who ordinarily practice in the
High Court, Part 'A' for Allahabad and Part 'B' for
Lucknow.
(iii) The Roll of Advocates shall bear in regard to
each advocate entered, his full name, father's name,
passport size coloured photograph, enrolment number,
date of enrolment, complete postal address both of
residence and office which shall be in the municipal
limits of the city of Allahabad or Lucknow as the case
might be.
(iv) The Rolls shall be prepared and revised
periodically in the manner and under the authority as
may be prescribed by the Chief Justice.
(v) This Rule 3-A shall come into force after notification
by the Chief Justice that both the Rolls for Allahabad
and Lucknow in Parts 'A' and 'B' are complete.
3. It is clear that as per Rule 3, an Advocate who is not on the Roll of
Advocate or the Bar Council of the State is not allowed to appear, act or
plead in the said Court unless he files an appointment along with the
advocate who is on the Roll of such State Bar Council and is ordinarily
practicing in that Court. The impact of this Rule is that for appearance in
Allahabad High Court, an Advocate who is registered with the Bar
Council of the State of Uttar Pradesh is allowed to appear, act or plead
in the said Court only when he files his Vakalatnama along with an
Advocate who is enrolled with Bar Council of Uttar Pradesh and is
ordinarily practicing in the Allahabad High Court (hereinafter referred to
as the 'local Advocate'). Roll of Advocate is to be prepared by the High
Court in terms of Rule 3-A(ii), both for Allahabad (which is the main seat
of the High Court) and Lucknow (which is the Bench of the Allahabad
High Court). Rule 3A puts a further rider for appearance of an Advocate
3Page 4
in the High Court at Allahabad or Lucknow inasmuch as an Advocate
who is not on the Roll of Advocates for Allahabad cases at Allahabad
and for Lucknow cases at Lucknow is allowed to appear, act or plead at
Allahabad or Lucknow, as the case may be, unless appearance is put in
along with a local Advocate. Notwithstanding the above, he can still be
allowed to appear after obtaining the leave of the Court.
4. Appellant, as an Advocate, had filed a writ petition in the High Court at
Allahabad but the Registry of the High Court refused to accept his
petition as the appellant is not enrolled with the Bar Council of U.P. and
he had not fulfilled the requirement of the aforesaid Rules by filing
appointment along with a local Advocate. Accordingly, he engaged a
local Advocate for Allahabad cases at Allahabad. At the same time, he
filed the writ petition in question challenging the validity of the Rules
which has been dismissed by the impugned judgment, as pointed out
above.
5. It is the contention of the appellant, who appeared in person, that the
right to practice of advocates in any Court in India has been recognized
and granted by Section 30 of the Act and right to practice is also a
fundamental right guaranteed under Article 19(1)(g) of the Constitution of
India. He submitted that the impugned Rules are made by the High
Court in exercise of powers under Section 34 of the Act which provision
4Page 5
confers the power on the High Court to only lay down conditions subject
to which an Advocate shall be permitted to practice in the High Court
and the Courts subordinate thereto, but it does not empower the High
Court to frame the Rules laying down prohibition from appearance and
the Rules in question amount to prohibition or unreasonable restrictions.
It is further argued that as per the provisions of Article 22 of the
Constitution of India read with Section 303 of the Code of Criminal
Procedure, citizens of this country are given a right to defend
themselves by legal practitioner/pleader of their choice. According to
him, the impugned Rules have the effect of denying this choice to the
citizens as well.
In support of aforesaid submissions, the appellant has referred to the
judgment of the High Court of Patna in the case of Anju Mishra and
Ors. v. The High Court of Judicature at Patna and Ors. rendered on
17.07.2015 in Civil Writ Jurisdiction Case Nos.10185 and 19862 of 2010
and connected matters by the Full Bench of the Patna High Court. He
submitted that the said High Court has declared similar Rules enacted
by the High Court of Patna as unconstitutional and ultra vires Section 30
of the Act.
6. This appeal is contested by the respondents/High Court of Allahabad.
Bar Council of India was allowed to intervene in the matter. It has also
supported the respondents and taken the position that the Rules in
5Page 6
question are valid and does not suffer from the vice of unconstitutionality.
This Court had also appointed Mr. P. Vishwanathan Shetty, Senior
Advocate as the Amicus Curiae who has filed the written submissions,
wherein he has stated that after examining the legal position, according
to him, the Rules in question are valid and proper.
7. Mr. Rakesh Dwivedi, Senior Advocate, who appeared on behalf of the
respondent/High Court submitted that Rules have been made under
Article 225 of the Constitution of India and Section 34 of the Act. He
argued that no doubt Article 19(1)(g) of the Constitution of India gives a
fundamental right to practice any profession or to carry on any
occupation, trade or business, nevertheless, that right is subject to the
limitations contained under Article 19(6) of the Constitution of India
which empowers the State to make any law imposing reasonable
restrictions on the exercise of such rights in the interest of general
public. He submitted that right to practice law or right to appear, act or
plead in a court of law is not an absolute right but is subject to
reasonable restrictions and the Rules in question requiring Advocates to
be enrolled with the State Bar Council and the role of the High Court is
nothing but a reasonable restriction on the right to practice. Mr. Dwivedi
argued that the rationale behind the Rule is to fix accountability on the
Advocates practicing before the High Court. The Rules also help in
regulating the functioning of the Court. The strength of the Bar in the
6Page 7
State is enormous and a large number of law graduate pass out every
year in the State of U.P. and enter active legal practice. It is important
for the orderly functioning of the Allahabad High Court that Rolls are
maintained in Order to effect service of notices and copies of pleadings
and ensure regular procedural compliances. The same will not be
possible if proper records of Advocates practicing in the High Court are
not maintained in the High Court. He also argued that Rule 3 and Rule
3A of the Rules are merely regulatory provisions and there is no
absolute restriction or prohibition on the right to practice. Any person
who is not on the Roll of Advocates maintained by the High Court, may
still appear, act and plead by filing appointment of a local Advocate or he
may take leave of the court to appear, even though he may not be on the
Roll of the High Court. These provisions are in the interest of the
general public, especially the litigants before the High Court and also for
the administration of Justice in the State. Mr. Dwivedi further submitted
that right to practice conferred under Section 30 of the Act is subject to
rule making power of the High Court under Section 34 of the Act and
while making Rules, High Court has a right and duty to regulate the
conduct of its own proceedings. Therefore, the impugned Rules are not
ultra vires Section 30 of the Act. Learned Senior Counsel also pointed
out the Full Bench judgment of Patna High Court relied upon by the
appellant had already been recalled by the said High Court in the review
7Page 8
petition that was filed seeking review of the judgment and, therefore, no
sustenance can be taken from the said judgment. Mr. Dwivedi also
referred to certain judgments of this Court to support his submission that
Rules in question were only in the nature of regulatory provisions.
8. Almost on the same lines, written submissions are filed by the learned
Amicus Curiae and the oral arguments were advanced by the learned
counsel appearing for the Bar Council of India.
9. We have given due consideration to the respective submissions.
10. Article 19 of the Constitution of India guarantees certain freedoms to the
citizens of this country which includes right to practice any profession, or
to carry on any occupation, trade or business. It, therefore, naturally
follows that right to practice law, which is a profession, is a fundamental
right that is conferred upon all citizens of this country. Therefore, it can
be said that the appellant has right to appear in any Court in India which
would include right to appear and argue the matters even in High Court
of Allahabad.
11. The respondents, however, contend that right of the appellant to appear
in the High Court of Allahabad has not been taken away by the
impugned Rules. As per them, these Rules are only regulatory in nature
and the main purpose is to impose reasonable restrictions in the interest
8Page 9
of general public. On this basis, the attempt of the respondents is to
save the aforesaid Rules by invoking clause (6) of Article 19. Article
19(6) is worded as under:
“Article 19(6) : Nothing in sub clause (g) of the said
clause shall affect the operation of any existing law in
so far as it imposes, or prevent the State from making
any law imposing, in the interests of the general public,
reasonable restrictions on the exercise of the right
conferred by the said sub clause, and, in particular,
nothing in the said sub clause shall affect the operation
of any existing law in so far as it relates to, or prevent
the State from making any law relating to,
(i) the professional or technical qualifications necessary
for practising any profession or carrying on any
occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation
owned or controlled by the State, of any trade,
business, industry or service, whether to the exclusion,
complete or partial, of citizens or otherwise.”
The appellant, on the other hand, has submitted that the Rules do not
amount to reasonable restrictions but are in the nature of prohibition
inasmuch as a lawyer who is not enrolled with U.P. Bar Council or on the
rolls of Allahabad High Court is not allowed to appear in the said Court.
12. In the first instance, therefore, it needs to be determined as to whether
the Rules in question are in the nature of restrictions or they are
prohibitory in nature. Our answer to this question is that Rules 3 and 3A
of the Rules are regulatory provisions and do not impose a prohibition on
practice of law. These Rules prescribe that an Advocate who is not on
rolls of Advocate in the High Court is obligated to file an appointment
9Page 10
along with a local Advocate. There is no absolute bar to appear. In fact,
with the leave of the Court, an Advocate is still permitted to appear even
without a local Advocate. In essence, an Advocate who is not on the roll
of Advocates in the High Court can appear along with a local Advocate.
Alternatively, even without fulfilling this requirement, an Advocate who is
not on the rolls of Advocates in the High Court can move an application
before the Court seeking leave to appear without even a local Advocate
and in appropriate cases, such a permission can be granted.
13. In N.K. Bajpai v. Union of India1
, this Court made it clear that right to
practice can be regulated and is not an absolute right which is free from
restriction or without any limitation. Following observations from the said
judgment are pertinent and relevant for the present case:
“24. A bare reading of these three provisions clearly
shows that this is a statutory right given to an advocate
to practise and an advocate alone is the person who
can practise before the courts, tribunals, authorities and
persons. But this right is statutorily regulated by two
conditions – one, that a person's name should be on the
State rolls and second, that he should be permitted by
the law for the time being in force, to practise before any
authority or person. Where the advocate has a right to
appear before an authority or a person, that right can be
denied by a law that may be framed by the competent
legislature.
25. Thus, the right to practise is not an absolute right
which is free from restrictions and is without any
limitation. There are persons like Mukhtars and others,
who were earlier entitled to practise before the courts,
but the Advocates Act itself took away the right to
practise which was available to them prior to its coming
into force. Thus, the Advocates Act placed a complete
1
(2012) 4 SCC 653
10Page 11
prohibition upon the right to practise of those persons
who were not advocates enrolled with the State Bar
Council. Therefore, the right to practise, which is not
only a statutory right under the provisions of the
Advocates Act but would also be a fundamental right
under Article 19(1)(g) of the Constitution is subject to
reasonable restrictions.
26. An argument could be raised that a person who
has obtained a degree of law is entitled to practise
anywhere in India, his right, as enshrined in the
Constitution and under the Advocates Act cannot be
restricted or regulated and also that it is not necessary
for him to enrol himself on any of the State rolls. This
argument would be fallacious in the face of the
provisions of the Advocates Act as well as the
restrictions contemplated in Article 19(6) of the
Constitution. The legislature is entitled to make a law
relating to the professional or technical qualifications
necessary for carrying on of that profession.
xxx xxx xxx
59. As already noticed by us above, the right to
practise law is a statutory right. The statutory right itself
is restricted one. It is controlled by the provisions of the
Advocates Act, 1961 as well as the Rules framed by the
Bar Council under that Act. A statutory right cannot be
placed at a higher pedestal to a fundamental right.
Even a fundamental right is subject to restriction and
control. At the cost of repetition, we may notice that it is
not possible to imagine a right without restriction and
control in the present society. When the appellants were
enrolled as advocates as well as when they started
practising as advocates, their right was subject to the
limitations under any applicable Act or under the
Constitutional limitations, as the case may be”.
14. At this juncture, we may also take note of the rationale behind the
impugned Rules which would not only be an answer to the question
which we are addressing at the moment, namely, the Rules are in the
nature of regulations/restrictions and not prohibition, it will even answer
11Page 12
related aspect as well viz. the restrictions are reasonable in nature as
they are in public interest.
15. The administration of justice is a sacrosanct function of the judicial
institutions or the persons entrusted with that onerous responsibility and
principle of judicial review has now been declared as a part of the basic
structure of the Constitution. Therefore, if anything has the effect of
impairing or hampering the quality of administration of justice either due
to lack of knowledge or proper qualification on the part of the persons
involved in the process of justice dispensation or they being not properly
certified by the Bar Council as provided under the Act and the Rules
made there under, it will surely affect the administration of justice and
thereby affecting the rights of litigants who are before the Courts seeking
justice. The whole object of the Rules in question is furtherance of the
administration of justice and to ensure that the advocates who can be
easily located or accountable to the Courts are allowed to practice
before the Court. Therefore, the Rules provide that the name of such
advocates whose names are not on the roll of the Advocates in the High
Court should appear with a local Advocate of the High Court. The easy
identification of the person who appears before the Court when he is the
enrolled advocate of another Bar Council or is not on the rolls of
Advocates of the High Court is to ensure his presence whenever the
cases are listed and to minimise the cases being dismissed for default
which may result in serious consequences to the litigants and multiplicity
and inordinate delay in proceedings whether it be a criminal case or civil
dispute is the objective of Rule 3 or 3A of the Rules. That objective is
achieved when he is permitted to appear along with the local Advocate
of the High Court.
16. In applying the test of reasonableness (which is the most crucial
consideration), the broad criterion is whether the law strikes a proper
balance between social control on the one hand and the rights of the
individual on the other hand. The court must take into account the
following aspects:-
(a) nature of the right infringed;
(b) underlying purpose of the restriction imposed;
(c) evils sought to be remedied by the law, its extent and urgency;
(d) how far the restriction is or is not proportionate to the evil; and
(e) prevailing conditions at the time.
The impugned Rules passed the aforesaid test of reasonableness. The
respondents have given appropriate justification and rationale behind the
Rules viz. to fix accountability on the advocates practicing before the
High Court. Such Rules are also aimed at helping in regulating the
functioning of the Court. It is important for the orderly functioning of the
Allahabad High Court that Rolls are maintained in Order to effect service
of notices and copies of pleadings and ensure regular procedural
compliances. The same will not be possible if proper records of
Advocates practicing in the High Court are not maintained in the High
Court. The administration of justice will suffer if no person is held
accountable for non-compliance of office reports etc. There may be
occasions when Advocates may be called upon by the Court in pending
matters and the dispensation of justice will suffer if there is no record of
Advocates who do not generally practice in the High Court, may not
attend matters in which they may have filed their vakalatnama before the
High Court. It is imperative for the smooth and effective functioning of
the court that the court is able to fix responsibility on Advocates, which is
not possible if Roll of Advocates is not maintained in the High Court.
Moreover, an advocate is permitted to file vakalat on behalf of a client
even though his appearance inside the court is not permitted. Conduct
in court is a matter concerning the Court. But the right to appear and
conduct cases in the court is a matter on which the court must and does
have major supervisory and controlling power. Hence courts cannot be
and are not divested of control or supervision of conduct in court merely
because it may involve the right of an Advocate.
We, thus, conclude that the Rules in question amount to reasonable
restrictions which are imposed in public interest.
17. No doubt, the Indian Advocates Act, 1961 confers statutory right to
practice under Section 30 which is brought into force only from
15.06.2011. However, this right is subject to the rule making power of the
High Court under Section 34 of the Act. Article 225 of the Constitution of
India also confers jurisdiction and powers in the High Court to make
rules of Court subject to law made by appropriate Legislature and states
that such a power of the High Court to make rules of Court shall be the
same as immediately before the commencement of the Constitution.
Before this provision in the Constitution, similar provision existed in the
form of Section 223 of the Government of India Act, 1935 and before
that, it was Section 106 of the Government of India Act, 1915 which
vested power in the High Court to make rules for regulating the practice
of the Court as was vested by Letters Patent. It is a known fact that the
Allahabad High Court was constituted under a letters patent issued by
her majesty on 17.03.1866.
Clause 7 of Letters Patent of Allahabad High Court is extracted below:
The Civil Court Manual Vol. 31 Pg.4
“7. Powers of High Court in admitting
Advocates, Vakils and AttorneysAnd
we do hereby authorize and empower the
said High Court of Judicature for the North-Western
Provinces to approve, admit and enroll such and so
many Advocates, Vakils and Attorneys as to the said
High Court shall seem meet; and such Advocates,
Vakils and Attorneys shall be and are hereby
authorized to appear for the suitors, of the said High
Court, and to plead or to act, or to plead and act, for
the said suitors, according as the said High Court
may by its rules and directions determine and
subject to such rules and directions.”
A perusal of Clause 7 shows that the High Court of Judicature for the
North-Western provinces (now known as Allahabad High Court) was
empowered to “approve, admit and enroll advocates” and to authorize
them “to appear, to plead or to act, or to plead and act” for the suitors in
accordance with the rules and directions. This power of the High Court
continues by virtue of Section 223 of the Government of India Act, 1935
and Article 225 of the Constitution of India.
18. That apart, Section 34 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 courts subordinate thereto. It
reads as under:
“34. Power of High Courts to make rules.—
(1) The High Court may make rules laying down the
conditions subject to which an advocate shall be
permitted to practise in the High Court and the courts
subordinate thereto.
[(1A) The High Court shall make rules for fixing and
regulating by taxation or otherwise the fees payable as
costs by any party in respect of the fees of his
adversary’s advocate upon all proceedings in the High
Court or in any Court subordinate thereto.]
[(2) Without prejudice to the provisions contained in
sub-section (1), the High Court at Calcutta may make
rules providing for the holding of the Intermediate and
the Final examinations for articled clerks to be passed
by the persons referred to in section 58AG for the
purpose of being admitted as advocates on the State
roll and any other matter connected therewith.]
19. Section 30 of the Act which confers a right to practice has been
expressly made “subject to the provisions of this Act”. We reproduce
Section 30 of the Act hereinbelow:
“30. Right of advocates to practise.—Subject to
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.”
Therefore, Section 30 is also subject to Section 34. The Act does not
confer any absolute right to practice. The right can be regulated by the
High Courts by prescribing conditions.
20. From the above discussion, it becomes clear that High Court is duly
empowered to make rules and Rules in question are not ultra vires
Section 30 of the Act. It is more so when power under Section 34 of the
Act is given to the High Courts, which are Constitutional Courts.
21. We have already pointed out above that the restriction stipulated in the
impugned Rules is reasonable and in public interest. It would be
necessary to clarify at this stage that the disciplinary jurisdiction
conferred on the Bar Councils under Section 36 of the Act for
misconduct committed by the advocates stand on a different footing than
the powers conferred on the High Courts to frame rules to practice
before the High Court or subordinate Courts. It may be the intention of
the Parliament to confer the jurisdiction on the lawyers' body like Bar
Councils regarding misconduct by advocates to maintain the
independence of the Bar. However, again keeping in mind the
administration of justice and regulating the Court proceedings and right
to practice and right to appear before the high Courts and Subordinate
Courts, power is conferred on the High Courts, to frame rules. If High
Court keeping in mind, several relevant factors like the purity in a
administration of justice, the interest of the litigant public and easy
availability of the advocate to assist the court for proper adjudication of
the dispute pending before it or expeditious disposal of such
proceedings or for any other valid or good reasons which High Court
considered just and proper frames such rules, we find no fault in Rule 3
or Rule 3A of the Rules.
22. The aforesaid conclusion of ours flow from the dicta laid down by this
Court in the various judgments and we would like to refer to some of
these cases. In the case of Bar Council of India v. High Court of
Kerala2
wherein para 38, this Court held as follows:
2
(2004) 6 SCC 311
“38. Holding that the right of appearance in courts is still
within the control and jurisdiction of courts, this Court
noticed: (SCC pp. 72-73, para 34)
“34. … Section 30 of the Advocates Act has not been
brought into force and rightly so. Control of conduct in
court can only be within the domain of courts. Thus
Article 145 of the Constitution of India gives to the
Supreme Court and Section 34 of the Advocates Act
gives to the High Courts power to frame rules including
rules regarding condition on which a person (including
an advocate) can practise in the Supreme Court and/or
in the High Court and courts subordinate thereto. Many
courts have framed rules in this behalf. Such a rule
would be valid and binding on all. Let the Bar take note
that unless self-restraint is exercised, courts may now
have to consider framing specific rules debarring
advocates, guilty of contempt and/or unprofessional or
unbecoming conduct, from appearing before the courts.
Such a rule if framed would not have anything to do with
the disciplinary jurisdiction of the Bar Councils. It would
be concerning the dignity and orderly functioning of the
courts. The right of the advocate to practise envelops a
lot of acts to be performed by him in discharge of his
professional duties. Apart from appearing in the courts
he can be consulted by his clients, he can give his legal
opinion whenever sought for, he can draft instruments,
pleadings, affidavits or any other documents, he can
participate in any conference involving legal discussions,
he can work in any office or firm as a legal officer, he can
appear for clients before an arbitrator or arbitrators, etc.
Such a rule would have nothing to do with all the acts
done by an advocate during his practice. He may even
file vakalat on behalf of a client even though his
appearance inside the court is not permitted. Conduct in
court is a matter concerning the court and hence the Bar
Council cannot claim that what should happen inside the
court could also be regulated by them in exercise of their
disciplinary powers. The right to practise, no doubt, is the
genus of which the right to appear and conduct cases in
the court may be a specie. But the right to appear and
conduct cases in the court is a matter on which the court
must and does have major supervisory and controlling
power. Hence courts cannot be and are not divested of
control or supervision of conduct in court merely
because it may involve the right of an advocate. A rule
can stipulate that a person who has committed contempt
of court or has behaved unprofessionally and in an
unbecoming manner will not have the right to continue to
appear and plead and conduct cases in courts. The Bar
Councils cannot overrule such a regulation concerning
the orderly conduct of court proceedings. On the
contrary, it will be their duty to see that such a rule is
strictly abided by. Courts of law are structured in such a
design as to evoke respect and reverence to the majesty
of law and justice. The machinery for dispensation of
justice according to law is operated by the court.
Proceedings inside the courts are always expected to be
held in a dignified and orderly manner. The very sight of
an advocate, who is guilty of contempt of court or of
unbecoming or unprofessional conduct, standing in the
court would erode the dignity of the court and even
corrode its majesty besides impairing the confidence of
the public in the efficacy of the institution of the courts.
The power to frame such rules should not be confused
with the right to practise law. While the Bar Council can
exercise control over the latter, the courts are in control
of the former. This distinction is clearly brought out by
the difference in language in Section 49 of the Advocates
Act on the one hand and Article 145 of the Constitution
of India and Section 34(1) of the Advocates Act on the
other. Section 49 merely empowers the Bar Council to
frame rules laying down conditions subject to which an
advocate shall have a right to practise i.e. do all the
other acts set out above. However, Article 145 of the
Constitution of India empowers the Supreme Court to
make rules for regulating this practice and procedure of
the court including inter alia rules as to persons
practising before this Court. Similarly Section 34 of the
Advocates Act empowers High Courts to frame rules,
inter alia to lay down conditions on which an advocate
shall be permitted to practise in courts. Article 145 of the
Constitution of India and Section 34 of the Advocates Act
clearly show that there is no absolute right to an
advocate to appear in a court. An advocate appears in a
court subject to such conditions as are laid down by the
court. It must be remembered that Section 30 has not
been brought into force and this also shows that there is
no absolute right to appear in a court. Even if Section 30
were to be brought into force control of proceedings in
court will always remain with the court. Thus even then
the right to appear in court will be subject to complying
with conditions laid down by courts just as practice
outside courts would be subject to conditions laid down
by the Bar Council of India. There is thus no conflict or
clash between other provisions of the Advocates Act on
the one hand and Section 34 or Article 145 of the
Constitution of India on the other.”
23. We have already referred to the judgment in the case of N.K. Bajpai
wherein it was held that right to practice as an Advocate is not an
absolute right and it was only a statutory right which is controlled by the
provisions of the Act.
24. The principle that the High Court has right to regulate the conduct of its
own proceedings can also be found in Pravin C. Shah v. K.A. Mohd.
Ali & Anr.3
. In that case, it was held that the High Court cannot be
divested of the control or supervision of the court merely because it may
involve the right of an advocate. The High Court has power to formulate
rules for regulating proceedings inside the court. Such power should not
be confused with the right to practice law. The court has supervisory
power over the right of an Advocate to appear and conduct cases in the
court. This court also cited with approval the judgment of the Allahabad
High Court in the case of Prayag Das v. Civil Judge, Bulandshahr4
,
wherein the High Court held that the High Court has power to regulate
the appearance of Advocates in courts. The High Court further held that
the right to practice in the right to appear in courts are not synonymous.
Under Section 34 of the Act, the High Court has power to make rules for
regulating proceedings inside the court.
3
(2001) 8 SCC 650
4 AIR 1974 All. 133
25. Same sentiments are echoed in R.K. Anand & Anr. v. Registrar, Delhi
High Court and Anr.5
and Ex-Capt. Harish Uppal v. Union of India &
Anr.6
.
26. We, thus, are of the opinion that Rules 3 and 3A of the Allahabad High
Court Rules, 1952 and perfectly valid, legal and do not violate the right
of the appellant under Article 19(1)(g) of the Constitution of India. The
appeal, therefore, fails and is hereby dismissed. There shall, however,
be no order as to cost.
.............................................J.
(A.K. SIKRI)
.............................................J.
(N.V. RAMANA)
NEW DELHI;
AUGUST 26, 2016.
5
(2009) 8 SCC 106
6
(2003) 2 SCC 45
22
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