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PETITIONER: AELTEMESH REIN, ADVOCATE, SUPREME COURT OF INDIA

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT04/08/1988

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) DUTT, M.M. (J)

CITATION:  1988 AIR 1768            1988 SCR  Supl. (2) 223  1988 SCC  (4)  54        JT 1988 (3)   275  1988 SCALE  (2)301  CITATOR INFO :  D          1990 SC 334  (111)

ACT:     Constitution of India, 1950: Article 32- Mandamus- Scope of-  Enforcement  of statute or provisions therein  left  to discretion of Government- Whether mandamus can be issued  to enforce them. %     Advocates  Act, 1961: Section 30- Right of Advocates  to practice  in all courts, tribunals, etc.-   Enforcement  of- Necessity for.     Prisoners (Attendance in courts) Act, 1955:  Handcuffing of  accused-  Resort to- Union of India  directed  to  frame rules and guidelines them to States and Union Territories.

HEADNOTE:     In  the writ petition filed before this Court  regarding alleged  handcuffing of a practising advocate,  contrary  to law, while he was being taken to the court after he had been arrested on the charge of a criminal offence, it was alleged that  the Union Government and the Delhi Administration  had not issued necessary instructions to the police  authorities with  regard  to  the circumstances  in  which  an  accused, arrested in a criminal case, could be handcuffed or fettered in accordance with the judgment of this Court in Prem  Kumar Shukla  v.  Delhi  Administration, [1980]  3  SCR  856.  The question  whether this Court can issue a writ  for  bringing into force section 30 of the Advocates’ Act, 1961, providing the  right to every advocate, whose name was entered in  the State  roll to practice throughout the territories to  which the  Act  extended before the Courts,  Tribunals  and  other authorities  or persons referred to in the Scction, in  view of  s.  3(1)  of the Act empowering  Central  Government  to decide  the  dates on which various provisions of  the  Act, including  s. 3. should be brought into force, also came  up for consideration.     On  behalf of the respondents, it was submitted that  it was  for the Union of India to issue necessary  instructions regarding  handcuffing  of  an  accused  to  all  the  State Governments  and  the Governments of  Union  Territories  in accordance with the judgment in P.K. Shukla’s case, and that

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this  Court had jurisdiction to issue a writ  directing  the Central Government to consider the question of bringing into force  section 30 of the Advocates’ Act.                                                   PG NO 223                                                   PG NO 224     Disposing of the writ petition,     HELD:  1.1 It is not open to this Court to issue a  writ in the nature of mandamus to the Central Government to bring a statute or a statutory provision into force when according to  the said statute the date on which it should be  brought into  force  is  left  to  the  discretion  of  the  Central Government. [229D]     A. K. Roy, etc. v. Union of India and Another, [1982]  2 SCR 272, followed.     However, this Court is of the view that this cannot come in  the  way of this Court issuing a writ in the  nature  of mandamus  to the Central Government to consider whether  the time  for  bringing s. 30 of the Advocates  Act,  1961  into force has arrived or not. [229E]     1.2  Every discretionary power vested in  the  Executive should be exercised in a just, reasonable and fair way. That is the essence of the rule of law. [229F]     In  the  instant case, the Act was passed  in  1961  and nearly 27 years have elapsed since it received the assent of the President of India. In several conferences and  meetings of  lawyers  resolutions  have  been  passed  in  the   past requesting  the  Central  Government  to  bring  into  force section  30  of  the Act. It is not  clear  whether  Central Government  has  applied  its mind at all  to  the  question whether  s.  30  of the Act should be  brought  into  force. [229F-G]     Even today there are laws in force in the country  which impose  restrictions on the fight of an advocate  to  appear before certain courts, tribunals and authorities. ln many of the  cases  which  come up before the  Courts  or  Tribunals before which advocates cannot appear, as of right, questions of  law  affecting  the  rights  of  individuals  arise  for consideration and they need the assistance of advocates.  We have  travelled  a long distance from the days when  it  was considered that the appearance of a lawyer on one side would adversely  affect the interests of the parties on the  other side. The legal Aid and Advice Boards, which are functioning in  different  States,  can  now  be  approached  by  people belonging  to  weaker sections, such as,  Scheduled  Castes, Scheduled Tribes, women, labourers etc. for legal assistance and  for  providing  the services of  competent  lawyers  to                                                   PG NO 225 appear  on their behalf before the Courts and  Tribunals  in which  they have cases. In these circumstances  prima  facie there is no justification for not bringing into force s.  30 of the Act. [227D, G-H, 228A-B]     1.3 Even though the power under s. 30 of the  Advocates’ Act is discretionary, this Court is of view that the Central Government  should  be  called upon  to  consider  within  a reasonable time the question whether it should exercise  the discretion  one way or the other having regard to  the  fact that  more  than a quarter of century has elapsed  from  the date  on which the Act received the assent of the  President of India. [230A]     A  writ  in  the nature of mandamus will  issue  to  the Central Government to consider within a period of six months whether  s.  30 of the Act should be brought into  force  or not.     2.  The  Union of India is directed to  frame  rules  or guidelines as regards the circumstances in which handcuffing

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of the accused should be resorted to in conformity with  the judgment  of  this  Court in Prem Shankar  Shukla  v.  Delhi Administration, and to circulate them amongst all the  State Governments  and the Government of Union Territories  within three months.[226E]     Prem  Shankar Shukla v. Delhi Administration,  [1980]  3 SCR 855, referred to.

JUDGMENT:     ORIGINAL CRIMINAL JURISDICTION: Writ Petition (Crl)  No. 163 of 1988.     (Under Article 32 of the Constitution of India).     Petitioner-in-person.     K. Parsaran, Attorney General, Kuldip Singh,  Additional Solicitor General and Ms. A. Subhashini for the Respondents.     The Judgment of the Court was deliver by     VENKATARAMIAH,  J. On the basis of the allegations  made in  the above Writ Petition at the time of  the  preliminary hearing  the Court felt that notice should be issued to  the Union  of  India regarding two matters and  accordingly  the court  made  an order that the Union Government  shall  show                                                   PG NO 226 cause  (i)  why  it  should not  be  directed  to  implement faithfully the decision of this Court in Prem Shankar Shukla v.  Delhi  Administration, [1980] 3 SCR 855 as  regards  the handcuffing of the accused arrested under the provisions  of the Criminal Law; and (ii) why it should not be directed  to consider  the  question of issuing a  Notification  bringing section 30 of the Advocates Act, 1961 (hereinafter  referred to as ’the Act’) into force since already more than 25 years had elapsed from the date of the passing of the Act.     The first question referred to above arose on account of the  allegations relating to the alleged handcuffing  of  an advocate  practising in Delhi contrary to law while  he  was being  taken to the Court of the Metropolitan Magistrate  at Delhi after he had been arrested on the charge of a criminal offence. It is urged that the Union Government and the Delhi Administration had not issued necessary instructions to  the police authorities with regard to the circumstances in which an accused, arrested in a criminal case, could be handcuffed or fettered in accordance with the judgment of this Court in Prem  Shankar Shukla v. Delhi Administration,  (supra).  The learned Attorney General of India very fairly conceded  that it   was  for  the  Union  of  India  to   issue   necessary instructions  in this behalf to all the  States  Governments and  the  Governments of Union Territories.  We  accordingly direct  the Union of India to frame rules or  guidelines  as regards  the  circumstances  in  which  handcuffing  of  the accused  should  be  resorted  to  in  conformity  with  the judgment  of this Court referred to above and  to  circulate them  amongst all the State Governments and the  Governments of  Union  Territories.  This part of  the  order  shall  be complied with within three months.     We  shall  now  take up  for  consideration  the  second question referred to above. The Advocates Act, 1961 received the  assent  of the President of lndia on the 19th  of  May, 1961. Sub-section (3) of section 1 of the Act provides  that it  shall  in relation to the territories other  than  those referred  to  in  sub-section (4) come  into  force  as  the Central  Government  may  by notification  in  the  Official Gazette  appoint  and different dates may be  appointed  for different  provisions of the Act. Chapters I, II and VII  of the  Act were brought into force on 16.8.1961,  Chapter  III

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and section 50(2) on 1.12.1961, section 50(1) on 15.12.1961, sections  51 and 52 on 24.1.1962, section 46  on  29.3.1962, section  32 and Chapter VI (except sections 50(1)  and  (2), 51,  52  and  46  which had  already  come  into  force)  on 4.1.1963, Chapter V on 1.9.1963 and sections 29, 31, 33  and 34  of Chapter IV of the Act on 1.6.1969. Section 30 of  the Act,  with which we are concerned, has not yet been  brought into force. Section 30 of the Act reads thus:                                                   PG NO 227     "30.  Right  of  advocates to  practise-Subject  to  the 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."     When  section 30 of the Act is brought into force  every advocate  whose  name is entered in the State roll  will  be entitled as of right to practise throughout the  territories to  which the Act extends, before the Courts, Tribunals  and other authorities or persons referred to therein. Even today there  are  laws  in  force  in  the  country  which  impose restrictions  on the right of an advocate to  appear  before certain Courts, Tribunals and authorities. Section 36(4)  of the  Industrial  Disputes  Act, 1947 provides  that  in  any proceeding  before  a  Labour Court,  Tribunal  or  National Tribunal a party to a dispute may be represented by a  legal practitioner  with the consent of the other parties  to  the proceeding and with the leave of the Labour Court,  Tribunal or National Tribunal, as the case may be. Section 13 of  the Family Courts Act, 1984 provides that no party to a suit  or proceeding  before a Family Court shall be entitled,  as  of right, to be represented by a legal practitioner. There is a proviso  to the said scction whereunder if the Family  Court considers  it necessary in the interests of justice  it  may seek  the  assistance of a legal expert  as  amicus  curiae. There  are certain land tribunals constituted under some  of the  Acts which are in force in certain States before  which advocates  cannot appear at all. In many of the cases  which come  up  before  the  Courts  or  Tribunals  before   which advocates cannot appear as of right complicated questions of law   affecting   the  rights  of  individuals   arise   for consideration and they need the assistance of advocates.  We have  travelled  a long distance from the days when  it  was considered that the appearance of a lawyer on one side would adversely  affect the interests of the parties on the  other side. The Legal Aid and Advice Boards, which are functioning in  different  States,  can  now  be  approached  by  people                                                   PG NO 228 belonging  to  weaker sections, such as,  Scheduled  Castes, Scheduled Tribes, women, labourers etc. for legal assistance and  for  providing  the services of  competent  lawyers  to appear  on their behalf before the Courts and  Tribunals  in which  they have cases. In these circumstances  prima  facie there  appears to be now no justification for  not  bringing into force section 30 of the Act.     It is no doubt true that the Central Government has been given  the power by Parliament to appoint the date on  which any  of the provisions of the Act shall come into  force  by sub-section  (3)  of  section  1 of the  Act  and  the  said provision does not lay down any objective standards for  the determination  of  the  date on which any  of  the  specific

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provisions  of  the Act should be brought  into  force.  The question for consideration is whether this Court can issue a writ in the nature of mandamus to the Central Government  to bring  section  30  of the Act into force.  Dealing  with  a similar question a Constitution Bench of this Court in  A.K. Roy, etc. v. Union of India & Another, [1982] 2 SCR 272  has taken  the  view  that  a writ in  the  nature  of  mandamus directing  the  Central Government to bring a statute  or  a provision  in  a statute into force in  exercise  of  powers conferred  by Parliament in that statute cannot  be  issued. Chandrachud,  C.J.,  who  spoke  for  the  majority  of  the Constitution  Bench has observed at pages 314 to 316 of  the Report thus:     "But  we find ourselves unable to intervene in a  matter of  this  nature  by  issuing  a  mandamus  to  the  Central Government obligating it to bring the provisions of  section 3  into force. The Parliament having left to the  unfettered judgment  of the Central Government the question as  regards the  time for bringing the provisions of the 44th  Amendment into force, it is not for the Court to compel the Government to   do  that  which,  according  to  the  mandate  of   the Parliament,  lies in its discretion to do when it  considers it  opportune to do it. The executive is responsible to  the Parliament   and  if  the  Parliament  considers  that   the executive  has  betrayed  its  trust  by  not  bringing  any provision  of the Amendment into force, it can  censure  the executive. It would be quite anomalous that the inaction  of the executive should have the approval of the Parliament and yet  we  should  show our disapproval of  it  by  issuing  a mandamus  ................... But, the Parliament  has  left the matter to the judgment of the Central Government without                                                   PG NO 229 prescribing any objective norms. That makes it difficult for us to substitute our own judgment for that of the Government on  the  question  whether section 3 of  the  Amendment  Act should  be brought into force ..... It is for these  reasons that we are unable to accept the submission that by  issuing a  mandamus,  the Central Government must  be  compelled  to bring the provisions of section 3 of the 44th Amendment into force  .....  If  only the Parliament were to  lay  down  an objective  standard to guide and control the  discretion  of the Central Government in the matter of bringing the various provisions  of  the  Act  into force,  it  would  have  been possible to compel the Central Government by an  appropriate writ  to  discharge  the  function assigned  to  it  by  the Parliament."      The   effect   of  the  above   observations   of   the Constitution  Bench is that it is not open to this Court  to issue  a  writ  in the nature of  mandamus  to  the  Central Government to bring a statute or a statutory provision  into force  when according to the said statute the date on  which it should be brought into force is left to the discretion of the  Central  Government.  As  long  as  the  majority  view expressed  in the above decision holds the field it  is  not open to this Court to issue a writ in the nature of mandamus directing the Central Government to bring section 30 of  the Act  into force. But, we are of the view that this  decision does not come in the way of this Court issuing a writ in the nature  of  mandamus to the Central Government  to  consider whether  the  time for bringing section 30 of the  Act  into force  has arrived or not. Every discretionary power  vested in  the Executive should be exercised in a just,  reasonable and  fair way. That is the essence of the rule of  law.  The Act  was  passed in 1961 and nearly 27  years  have  elapsed since  it received the assent of the President of India.  In

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several conferences and meetings of lawyers resolutions have been passed in the past requesting the Central Government to bring  into  force section 30 of the Act. It  is  not  clear whether  the Central Government has applied its mind at  all to  the  question whether section 30 of the  Act  should  be brought  into force. In these circumstances, we are  of  the view  that  the  Central Government should  be  directed  to consider  within a reasonable time the question  whether  it should bring section 30 of the Act into force of not. If  on such  consideration  the Central Government feels  that  the prevailing circumstances are such that section 30 of the Act should  not  be  brought  into force  immediately  it  is  a different  matter.  But it cannot be allowed  to  leave  the matter  to  lie over without applying its mind to  the  said                                                   PG NO 230 question. Even though the power under section 30 of the  Act is  discretionary, the Central Government should  be  called upon in this case to consider the question whether it should exercise  the discretion one way or the other having  regard to the fact that more than a quarter of century has  elapsed from  the date on which the Act received the assent  of  the President  of India. The learned Attorney General  of  India did not seriously dispute the jurisdiction of this Court  to issue the writ in the manner indicated above.      We,  therefore, issue a writ in the nature of  mandamus to the Central Government to consider within a period of six months whether section 30 of the Act should be brought  into force or not. The Writ Petition is accordingly disposed of. N.P.V.                                 Petition disposed of.                                                   PG NO 231