1968 (1) TMI 53 - SC - Indian Laws

Summary

Issues Involved:
1. Scope of entries 77 and 78 in List I and entry 26 in List III of the Seventh Schedule to the Constitution.
2. Validity of Section 38 of the Advocates Act, 1961.
3. Validity of Rule 7 of Order 5 of the Supreme Court Rules.

Issue-wise Detailed Analysis:

1. Scope of Entries 77 and 78 in List I and Entry 26 in List III of the Seventh Schedule to the Constitution:
The appellant contended that Section 38 of the Advocates Act was ultra vires Article 138(2) of the Constitution, arguing that the appellate jurisdiction conferred by Section 38 fell under entry 26 in List III, necessitating a special agreement between the Government of India and the State Government. The court examined the scope of entries 77 and 78 in List I and entry 26 in List III. It concluded that entries 77 and 78 in List I deal with the constitution, organization, jurisdiction, and powers of the Supreme Court and High Courts, including persons entitled to practice before them. The court held that the Advocates Act, in its pith and substance, concerns the qualifications, enrolment, right to practice, and discipline of advocates, thus falling under entries 77 and 78 of List I and not under entry 26 of List III. Therefore, the Act does not require a special agreement under Article 138(2).

2. Validity of Section 38 of the Advocates Act, 1961:
The appellant argued that Section 38 of the Advocates Act was invalid as it was enacted without a special agreement with the State Government, as required by Article 138(2) of the Constitution. The court rejected this contention, stating that the jurisdiction to hear appeals under Section 38 was already vested in the Supreme Court under Article 136, as the Bar Councils of Delhi and India are quasi-judicial tribunals. The court further clarified that Section 38 merely removed the need for obtaining special leave under Article 136, thus not constituting "further jurisdiction" within the meaning of Article 138. Consequently, Section 38 was held to be valid.

3. Validity of Rule 7 of Order 5 of the Supreme Court Rules:
The appellant contended that Rule 7 of Order 5 of the Supreme Court Rules was ultra vires Section 38 of the Advocates Act, as it impaired his right of appeal. The court noted that this contention had already been raised and rejected in a review petition filed by the appellant. The court emphasized that Rule 7 merely provides for the preliminary hearing of an appeal and enables the court to dismiss it if found unsubstantial. The rule does not curtail the right of appeal under Section 38, as the appellant is heard on all points raised. The court held that Rule 7 falls within the rule-making power of the Supreme Court under Article 145(1)(b) and does not affect the right of appeal. Therefore, the validity of Rule 7 was upheld.

Conclusion:
The court dismissed the appeal, holding that the Advocates Act falls under entries 77 and 78 of List I, making Section 38 valid without requiring a special agreement under Article 138(2). Additionally, Rule 7 of Order 5 of the Supreme Court Rules was found to be valid and within the court's rule-making powers. The appellant's contentions were rejected, and the appeal was dismissed with costs.