Advocates Act; Jamshed Ansari Vs. High Court of Judicature At Allahabad [Supreme Court of India, 26-08-2016]

Constitution of India – Art. 19(1)(g) – Advocates Act, 1961 – Allahabad High Court Rules, 1952 – Chap. XXIV – Advocate who is not on the Roll of Advocates – Rules 3 and 3A of the Rules perfectly valid, legal and do not violate the right to practice.

Advocates Act, 1961 – Ss. 16 (2), 30 & 34 (1) – Allahabad High Court Rules, 1952 – Chap. XXIV- Rr. 3 & 3A – Constitutional Validity of –  Right of advocates to practise – Advocate who is not on the Roll of Advocates – 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 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.

Advocates Act, 1961 – S. 30 & 34 – Right of advocates to practise – the Act does not confer any absolute right to practice. The right can be regulated by the High Courts by prescribing conditions. 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.


IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

(A.K. SIKRI) AND (N.V. RAMANA) JJ.

AUGUST 26, 2016

CIVIL APPEAL NO. 6120 OF 2016

JAMSHED ANSARI …..APPELLANT(S)

VERSUS

HIGH COURT OF JUDICATURE AT ALLAHABAD & ORS. …..RESPONDENT(S)

J U D G M E N T

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 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 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 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 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 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 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 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