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PETITIONER: IN    v. LILY ISABEL THOMAS

       Vs.

RESPONDENT:

DATE OF JUDGMENT: 14/01/1964

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K. DAYAL, RAGHUBAR MUDHOLKAR, J.R.

CITATION:  1964 AIR  855            1964 SCR  (6) 229  CITATOR INFO :  R          1968 SC 888  (8)

ACT: Supreme  Court Rules-"Right to practise" if includes  "right to  act" --Rule making power--If conflicts with  legislative power  of Parliament--Supreme Court Rules, 1950 (as  amended in  1962), O. IV. rr. 16, 17--Validity  of--Constitution  of India,  Art. 145--Advocates Act, 1961 (25 of 1961)  ss.  52, 58(3).

HEADNOTE: The  petitioner was enrolled in the Madras High Court  under the Indian Bar Councils Act, and later admitted to the rolls of  this  Court  under the Supreme  Court  Rules.   In  this petition,  it  was  contended that under  s.  58(3)  of  the Advocates  Act, the petitioner was entitled "as of right  to practise"  in  this  Court,  and  the  "right  to  practise" included not merely the right to plead but also to act; that the rules made-0.  IV rr. 16 & 17 of the Supreme Court Rules are  invalid;  and that that by a rule made under  Art.  145 (1)(a) this Court could neither entitle a person to practice nor impose qualifications as to the right to practise, these matters  being  entirely  within  entry  77  and   therefore exclusively for parliamentary legislation. HELD:     (i)  The  words "right to practise" would  in  its normal connotation take in not merely right to plead but the right  to act as well and if no rules had been made  by  the Supreme  Court restricting the right to act, the  petitioner could  undoutedly have had a right both to plead as well  as to act. Ashwani  Kumar  Ghosh  v. Arabinda Bose,  [1953]  S.C.R.  1, referred to. (ii) Under  s.  58(3)  of  the  Advocates  Act,  the   right conferred  on Advocates enrolled under the Bar Councils  Act to  practise  in the Supreme Court is made  subject  to  any rules made by this Court.  Section 230 52  of  the Advocates Act specifically saves the  powers  of this  Court  to make rules under Art. 145.  In view  of  the

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saving,  repeated if s. 52 there is no question of the  rule restricting the right to act to a certain class of advocates as being contrary to a law made by Parliament. (iii)     On the express terms of Art. 145(1)(a) rules 16  & 17  of 0. IV are valid and within the rule making powers  of this  Court.   This Court can by its  rules  make  provision prescribing  qualifications  entitling persong  to  practise before  it,  and Parliament can do likewise.   ’Mere  is  no question  of  a conflict between the  legislative  power  of Parliament and the rule-making power of this Court,  because by reason of the opening words of Art. 145, any rule made by this Court would have operation only subject to laws made by Parliament on the subject of the entitlement to practise.

JUDGMENT: ORIGINAL JURISDICTION : Petition No. 42 of 1963. Under Article 32 of the Constitution for the enforcement  of fundamental rights. The petitioner appeared in person. S.   V.  Gupte, Additional Solicitor-General, N.  S.  Bindra and  R.  H. Dhebar, for the Hon’ble Judges  of  the  Supreme Court. A.   V.  Ranganadham Chetty, A. Vedavalli and A. V.  Rangam, for the intervener (W.  C. Chopra). January  14, 1964.  The Judgment of the Court was  delivered by AYYANGAR  J.-The proper construction of Art. 145(1)  (a)  of the   Constitution  in  the  context  of  a  prayer  for   a declaration  that rule 16 of Order IV of the  Supreme  Court Rules  as  invalid  is the principal point  raised  in  this petition  which has been filed by an Advocate who under  the Advocates Act, 1961, is entitled to practise in this Court. The  petitioner  was enrolled in the Madras  High  Court  on November  15, 1955 under the Indian Bar Councils  Act,  1926 and  was admitted to the rolls of this Court on October  29, 1960 under Order IV of the Supreme Court Rules as they  then stood.  She states that as an Advocate entitled to  practise in  this  Court, she is entitled as of right not  merely  to plead but also to act, and that the rules of this Court 231 which prescribe qualifications before she could be permitted to act are therefore invalid.  The prayer which she makes by her petition is therefore for a declaration that rule  16(1) of  Order IV of the Supreme Court Rules as amended  in  1962 which  contains  this  prescription  of  qualifications   be declared ultra vires of this Court and a further declaration that she is entitled to practise as an Advocate on record in this  Court without conforming to the requirements  now  im- posed by the impugned rule. Rule 16 whose validity is challenged runs:               "16.   No  Advocate shall be qualified  to  be               registered               as an Advocate on Record unless he-               (1)   has undergone training for one year with               an  Advocate on Record approved by the  Court,               and has thereafter passed such tests as may be               held  by the Court for Advocates who apply  to               be   registered   as  Advocates   on   Record,               particulars  whereof shall be notified in  the               Gazette  of India from time to time;  provided               however,  that an Attorney shall  be  exempted               from such training and test;               (2)   has  an office in Delhi within a  radius

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             of 10 miles from the Court House and gives  an               undertaking to employ, within one month of his               being  registered  as Advocate  on  Record.  a               registered clerk; and               (3)   pays a registration fee of Rs. 25". It  might  be mentioned that under the  Rules  though  every Advocate  whose  name is maintained in the  common  roll  of Advocates  prepared  under s. 20 of the Advocates’  Act,  is entitled  to plead, only those Advocates who are  registered as  "Advocates on record" are entitled to act as  well,  for rule 17 of Order provides :               "17.  An Advocate on Record shall be  entitled               to  act  as well as plead for any party  in  a               proceeding  on his filing in the proceeding  a               memorandum  of  appearance  accompanied  by  a               Vakalat-               232               nama  duly executed by the party in the  pres-               cribed form.               No  Advocate other than an Advocate on  Record               shall be entitled to file an appearance or act               for a party in the Court." The  contention urged by the petitioner who argued her  case in person and presented the points arising with ability  and moderation,  is  that under s. 58(3) of  the  Advocates  Act which reads               "58. (3) Notwithstanding anything in this Act,               every  person who, immediately before the  1st               day of December, 1961, was an advocate on  the               roll  of any High Court under the  Indian  Bar               Councils Act, 1926 or who has been enrolled as               an  advocate  under  this  Act  shall,   until               Chapter IV comes into force, be entitled as of               right  to  practise  in  the  Supreme   Court,               subject to the rules made by the Supreme Court               in this behalf" she is entitled "as of right to practise" in this Court. and she  claims that the "right to practise" would  include  not merely  the-right to plead, but also the right to act.   She is  right so far.  Her further submission is as regards  the scope and content of the rules which might lawfully be  made by this Court.  Undoubtedly, if there were no rules made  by the  Supreme  Court or if, as the petitioner  contends,  the rules  now  made-Order IV Rules 16 and  17-are  invalid  the petitioner  would be entitled not merely to plead as she  is now  entitled  to, but also to act which latter she  is  now prevented  by  rule  17 unless she  has  complied  with  the requirements of rule 16. The question then for consideration is whether the  impugned rules are valid.  This depends upon the proper  construction of  Art. 145(1)(a) by virtue of which the impugned rule  has been framed, which reads:               "145. (1) Subject to the provisions of any law               made by Parliament, the Supreme Court may from               time  to  time,  with  the  approval  of   the               President,                                    233               make   rules  for  regulating  generally   the               practice               and procedure of the Court including-               (a)   rules  as  to  the  persons   practising               before the court;" As  regards  this  Article there are two  matters  to  which attention  might be directed.  By the opening words  of  the Article  the  rules made by this Court are  subject  to  the

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provision of any law made by Parliament, so that if there is any  provision in a law made by Parliament by  which  either the  right to make the rule is restricted or which  contains provisions contrary to the rules, it is beyond dispute  that the  law  made  by  Parliament would  prevail.   It  is  the submission  of the petitioner that s. 58(3) quoted  earlier, is  such  a  law made by Parliament and  that  the  absolute right. granted to persons in the position of the  petitioner to "practise as of right" cannot be controlled by rules made by this Court.  In this connection our attention was invited to the decision of this Court in Aswini Kumar Ghosh and Anr. v. Arabinda Bose and Anr(1).  Here this Court explained what the  expression right to practise’ meant.  It was laid  down that  these  words  which  occurred  in  the  Supreme  Court Advocates  (Practise  in  High Court Act, 1951  whose  s.  2 enacted  "Every  Advocate  of the  Supreme  Court  shall  be entitled  as of right to practise in any High Court  whether or not he is an Advocate of that High Court" meant that such an  Advocate was entitled not merely to plead but to act  as well,  and that the enactment prevailed notwithstanding  any rule  made  by  the  High  Courts  of  Calcutta  and  Bombay restricting the right to act on the original sides of  those courts.   The decision, however, does not carry  the  matter far, because it was based on the inconsistency between  "the right to practise as of right" conferred by the enactment of 1951 and the saving as regards the rule making power of  the High Courts of Bombay and Calcutta to restrict "the right to act"  on  the  original  side  of  those  courts  which  was contained  in  the Bar Councils Act 1926.  This  Court  held that  it was a case of an implied repeal of that  saving  by the later legislation. (1)  [1953] S.C.R. 1 234 Nevertheless the petitioner, as stated earlier, is certainly right  in her submission that the words ’right to  practise’ would in its normal connotation take in, not merely right to plead  but the right to act as well and that is why we  said that  if  no rules had been made by the Supreme  Court  res- tricting the right to act, the petitioner could  undoubtedly have a right both to plead as well as to act. But  we have already pointed out that under s. 58(3) of  the Act, the right conferred on Advocates enrolled under the Bar Councils  Act  to  practise in the  Supreme  Court  is  made subject to any rules made by this Court.  To reinforce  this position there is a saving enacted by s. 52 of the Advocates Act  which  specifically saves the powers of this  Court  to make rules under Art. 145.  Section 52 reads:-               "52.   Nothing in this Act shall be deemed  to               affect the power of the Supreme Court to  make               rules under article 145 of the Constitution-               (a)   for  laying down the conditions  subject               to  which a senior advocate shall be  entitled               to practise in that Court;               (b)   for determining the persons who shall be               entitled to act in that behalf." In view of the saving which is repeated in s. 52 there is no question  of  the  rule restricting the right to  act  to  a certain  class of advocates as being contrary to a law  made by  Parliament.   The  only question  for  consideration  is whether Art. 145 (1) (a) is sufficient to empower this Court to frame the impugned rules. The  argument addressed to us with considerable  earnestness was that under the Article the rules to be framed under  the items  (a) to (j) were all to be framed for  regulating  the practice  and procedure of the Court which she  urged  indi-

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cated  the  underlying purpose with which  the  rule  making power  was vested in the Court.  Secondly she urged that  if head  (a)  -in  sub-Article (1) reading  "rules  as  to  the persons  practising  before the Court", were treated  as  an independent -subject, entirely, divorced from the context of the  opening  words "practice and procedure of  the  Court", even then the 235 power to make the rule was confined to the regulation of the conduct  of the persons practising i.e. entitled  under  the law to practising and so practising before the Court. Though a number of decisions were cited to us as to what was meant  by  ’practise and procedure of the Court’ we  do  not think  it useful or necessary to refer to them.  They  would have  been relevant and might require serious  consideration if the entire Power to make the rule was to depend merely on the  words  "regulating the practice and  procedure  of  the Court" but the Article specifically makes provision enabling rules  to  be  made "as to  persons  practising  before  the Court."  We are inclined to read item (a) as an  independent head  of  rule making power and not as merely a  part  of  a power  to  make  rules  for  "regulating  the  practice  and procedure of the Court." The word ’including’ which precedes the  enumeration  of  the items (a) to (i) as  well  as  the subject matter of item (a), stamp it as an independent  head of power. We  do  not, therefore, propose to deal  with  what  exactly would have been the content of a "regulation of practice and proceedure."  but shall proceed to consider the  meaning  of the  words  "Rules as to the persons practising  before  the Court" because if the rules now impugned could be  justified as  within  this power their validity cannot  be  impeached. Now as regards these words in item (a) the submission of the petitioner  was  two-fold : Firstly,  she  contrasted  these words with entry 77 in the Union List in Sch.  VII the  last portion of which reads: "Persons entitled to practise before the Supreme Court." Relying  on the contrast -between the two expressions  "per- sons practising" and "persons entitled to practise" the sub- mission  was that the words "persons practising  before  the Court" was narrower and gave this Court power to frame rules only  to  determine  the manner in  which  persons  who  had obtained a right to practise under a law made by  Parliament by virtue of its power under entry 77 could exercise 236 that right.  In this connection she drew a distinction  bet- ween ’being entitled to practise’ which would include deter- mining  or  prescribing  the qualifications  that  a  person should  possess before becoming entitled to practise,  which she urged was the subject matter of entry 77, and a rule  as to "a person practising before a court" which was the second stage  after  the  right to practice had  been  obtained  by Parliamentary  legislation.  In other words, the  submission was  that  by a rule made under Art.  145(1)(a)  this  Court could  neither  entitle  a person  to  practise  nor  impose qualifications  as  to  the right  to  practise-these  being matters  entirely within entry 77 and therefore  exclusively for parliamentary legislation. We  feel  unable to accept this argument.  We do  not  agree that  the  words "persons practising before  the  Court"  is narrower than the words "persons entitled to practise before the  Court".  The learned Additional  Solicitor-General  was well-founded in his submission that if, for instance,  there was  no  law  made by Parliament  entitling  any  person  to practise  before this Court, the construction  suggested  by

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the  applicant would mean that this Court could not  make  a rule  prescribing qualifications for persons to practise  in this Court.  In this connection it is interesting to  notice that  the  words  used in Art.  145(1)(a)  have  been  taken substantially from s. 214(1) of the Government of India Act, 1935.  That section ran, to quote the material words:               "The Federal Court may from time to time, with               the  approval of the Governor-General  in  his               discretion make rules of Court for  regulating               generally  the practice and procedure  of  the               Court  including  rules  as  to  the   persons               practising before the Court........ The Government of India Act, 1935 did not in its legislative lists have a provision like as we have in entry 77 of List I (vide entry 53 of List I).  The Federal Court immediately on its  formation made rules and under Order IV of those  rules provision was made prescribing qualifications for the                             237 enrolment  as  Advocates of the  Federal  Court.   Advocates entitled to practise in the High Courts with a standing of 5 years  on the rolls of High Court and who satisfied  certain requisite  conditions were entitled to be enrolled as  Advo- cates, while for enrolment as Senior Advocates a standing of 10 years as an Advocate of a High Court Bar was  prescribed. We  are  pointing this out only for the purpose  of  showing that  the  words "as to the persons  practising  before  the Court"  were  then used in a comprehensive sense  so  as  to include  a rule not merely as to the manner of practice  but also  of  the  right  to  practise  or  the  entitlement  to practice.  Those words which are repeated in Art.  145(1)(a) have still the same content.  We ought to add that there  is no anomaly involved in the construction that this Court  can by  its  rules  make  provision  prescribing  qualifications entitling persons to practise before it, and that Parliament can do likewise.  There is no question of a conflict between the  legislative  power of Parliament  and  the  rule-making power of this Court, because by reason of the opening  words of  Art.  145,  any  rule made  by  this  Court  would  have operation  only  subject to laws made by Parliament  on  the subject of the entitlement to practise.  We are,  therefore, clearly  of  the opinion that on the express terms  of  Art. 145(1)(a) the impugned rules 16 and 17 are valid and  within the rule-making power. The  learned Additional-Solicitor made a further  submission that  the rule could be justified under the inherent  powers of the Court and relied for this purpose on the decision  of this  Court  in  re: Sant Ram [1960] 3 S.C.R. 499  where  at pages  504, 505 the inherent powers of this Court have  been referred to.  In the view we take about the construction  of Art.  145(1)(a)  we do not think it necessary  to  rest  our decision  on  the inherent powers of this Court to  frame  a rule of this sort. The petition, therefore, fails and is rejected. Petition dismissed. 238