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TMI Blog2016 (8) TMI 1609X X X X Extracts X X X X X X X X Extracts X X X X ..... from restriction or without any limitation. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llahabad 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 State is enormous and a large number of law graduate pass out every year in the State of U.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 occup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enied 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 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 we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch 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 Attorneys- And 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actice. 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions 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. (2001) 8 SCC 650 . 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, Bulandshahr AIR 1974 All. 133 , wherein the High Court held that the High Court has power to regulate the appearance of Advocates ..... X X X X Extracts X X X X X X X X Extracts X X X X
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