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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 ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess 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 confers the power on the High Court to on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 copi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atent 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssary 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 erod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 25. Same sentiments are echoed in R.K. Anand & Anr. v. Registrar, Delhi High Court and Anr. (2009) 8 SCC 106 and Ex-Capt. Harish Uppal v. Union of India & Anr. (2003) 2 SCC 45. 26. We, thus, are of the opinion that Rules 3 and 3A of the Allahabad High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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