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PETITIONER: PRABITRA KUMAR BANNERJI

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL

DATE OF JUDGMENT: 07/10/1963

BENCH: SHAH, J.C. BENCH: SHAH, J.C. SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. WANCHOO, K.N. HIDAYATULLAH, M.

CITATION:  1964 AIR  593            1964 SCR  (5)  45

ACT:    Constitution  of  India,  Art.  14--Calcutta  High  Court (Original  Side) Bar--Classification based on  pleading  and acting---Separate accomodation to the different  classes--If amounts to denial of equality before the law.

HEADNOTE:     The High Court of Calcutta had separately allotted rooms in  the  Court  premises  to  the  Barristers  for  use  and occupation  for their Bar Library Club, to  Advocates  other than  Barristers  for  their  Bar  Association  and  to  the Attorneys   for   their  Incorporated  Law   Society.    The petitioners,  who were Advocates of the Calcutta High  Court and  generally  practiced  on  its Original  Side  and  were called  to the English Bar, had not read for a period of  12 months in the Chambers of a practising Barrister in  England or in Calcutta as required by the rules of the Original bide but applied for becoming members of the Bar Library Club and their  applications were refused.  Their  representation  to the  Chief Justice was also refused.  On  their  application under  Art. 32   the Constitution this Court issued  a  Rule against the State of West Bengal and the Chief Justice.  The Joint  Secretaries  of the Bar Library Club  were  later  on added  as  parties  and  the  Bar  Association  appeared  as intervener.   The  result of this intervention  of  the  Bar Association was that the petition as it originally stood was broadend into a  claim to  abolish the exclusiveness of  the Bar  Library  Club in favour of all other Advocates  as  was indicated  in the representation made by the Association  to the  Chief  Justice  of Calcutta High  Court  which  to  the following effect :-- 46                 We  on behalf of the Bar Association  humbly               represent  that  no  separate  space  may   be               allotted  to the said group of  advocates  who               call themselves Barristers but who practice in               this  Court as Advocates and are therefore  in               no  way  to  be separately  treated  from  the               Advocates  in general, and this  allotment  of

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             separate rooms to the Bar Library Club offends               against Art. 14 of the Constitution. We demand               justice and  pray for redress of our aforesaid               grievance  so  that there should  be  one  Bar               Association  for all the Advocates  practicing               in this High Court and the rooms now  occupied               by  Bar Library Club may be allotted  to  such               Bar Association."     While  the  matter was pending in this  Court,  the  Bar Library  Club  altered  its rules so as to  admit  all  such Advocates  as would undertake only to plead and not  to  act and the Attorney-General, appearing on its behalf, gave  the assurance  that  there  would  be  no  discrimination,   all Advocates  who  undertook not to act would be  eligible  for admission  to the club.  This position was agreed to by  the Joint Secretaries representing the Bar Library Club.     field:  This altered position meant a great  improvement on  the existing one and no better could be expected in  the presents proceeding.     Regard  being had to the historical growth of the  three sections of the Bar in the Calcutta High Court, namely,  (1) those  who  only  pleaded, (2) those who  both  pleaded  and acted,  and (3) those who only acted, it could not  be  said that  classification was unreasonable or that the  grant  of separate  accommodation  to  them amounted to  a  denial  of equality before the law.     Since  the  Bar Library Club had agreed  to  change  its rules so as to conform exactly to the first  classification, admission  to it would be governed by rules which  would  be common  to  all  lawyers  who  wanted  to  plead  only  and, consequently,  there  was no reason to  interfere  with  the separate  grant of accommodation by the court to  the  three sections.     If  the  Bar  Library  Club  failed  to  carry  out  the undertaking  given  by  it would be the duty  of  the  Chief Justice  to frame such rules as were necessary to carry  out the  purpose for which the accommodation was granted and  to see that there was no violation of equality.

JUDGMENT:     ORIGINAL  JURISDICTION: Petition No. 42 of  1960.  Under Article 32 of the Constitution of India for the  enforcement of fundamental rights.     G.S. Pathak, A.P. Chatterji, E. Udayarathnam,  Durgabhai Deshmukh, B.  Dutta and S.S. Shukla, for the petitioners and the intervener. 47     Ranadeb  Chaudhuri,  S.P.  Varma  and  P.K.  Bose,   for respondents Nos. 1 and 2.     C.K.   Daphtary,  Solicitor-General, S.N.  Ghorai,  S.N. Andley and Rameshwar Nath, For respondent No. 3.     N.C.  Chattejee, S.N. Ghorai, S.N. Andley and  Rameshwar Nath, for respondent No. 4.     October  7,  1963.   The  Judgment  of  the  Court   was delivered by     SINHA   C.J.--This  petition  under  Art.   32  of   the Constitution arises out of the unfortunate difference  which has  a long history behind it, between two sections  of  the Calcutta  High  Court  Bar.  The  four  petitioners  in  the petition,  as  originally  presented,  are  advocates   duly enrolled  in  the  Calcutta High Court  (to  be  hereinafter referred  to as the Court) between the years 1948 and  1952, and  claim  to be entitled to appear and plead in  the  said

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High  Court  in  the exercise of its  Original  as  well  as Appellate jurisdictions. The respondents are; (1) the  State of West Bengal, represented by the Chief Secretary, and  (2) the Chief Justice of the Court. It appears that the petitioners generally practice the Court in  the exercise of its Original jurisdiction.  In the  year 1956  they  were called to the English Bar  by  the  Hon’ble Society  of the Middle Temple in the Michaelmas  Term.   The petitioners duly notified to the Registrar, Original Side of the  Court, to correct the register of advocates  practising on  the  Original side, by adding  "Barrister-at-Law"  after their   names.   Thus,   the  petitioners  who  started   as advocates of the Court claim to have become entitled to  the additional  qualification of a "Barrister" though  they  had not  read  for a period of 12 months in the  chambers  of  a practising Barrister in England or a practising Barrister in Calcutta,  as required by the rules of the Original side  of the  Court.  In other words, according to the rules  of  the Court,  there were three classes of advocates practising  in the Court; namely, (1) a Barrister who had read for not less than 48 12  months  in  the chambers of a  practising  Barrister  in England or in Calcutta; (2) a Barrister who had not so  read in  the chambers of a Barrister; and (3) any person who  had obtained  a  Bachelor’s  degree  in  Law  of  a   recognised university and had obtained the qualification to practise on the  Original side of the Court after passing the  necessary tests.   The  High Court is said to maintain  two  lists  of advocates entitled to appear and plead in the said Court  on the  Original side, namely, list 1 containing the  names  of persons  enrolled as advocates on the basis of  their  being Barristers-at-Law, and list 11 containing the names of other advocates than Barristers-at-Law. The petitioners claim that inasmuch  as they were persons duly qualified to appear  and plead  in  the said Court in the exercise  of  its  Original jurisdiction  and were so enrolled as advocates, it was  not necessary for them to further read in the chambers to become advocates  of  list  1,   of the  Court,  according  to  the classification set out above.  A portion of the building  of the said Court has been allotted for the use of advocates of the Court.  That portion has again been sub-divided into two portions;   (1)  one  occupied  by  the  Bar  Library   Club consisting  of advocates. of list 1 aforesaid, and  (2)  the other  in  the  occupation  of  the  Bar  Association  which consists  of advocates other than advocates of list 1.   The petitioners,  though  they have been able to  add  the  word "Barrister"  to their names, have not been admitted  to  the Bar Library Club, which is rather of an exclusive character. The petitioners thus suffer from a disability, because it is said  that litigants and/or solicitors generally  prefer  to engage an advocate who is a barrister and is a member of the Club.  The petitioners’ application for becoming members  of the  Club  was not entertained by it, and,  thus,  they  are being excluded from that portion of the Court building which is  in  the  exclusive occupation of  advocates  of  list  1 aforesaid.   The  petitioners  and  another  advocate   made representations  to  the Hon’ble the Chief  Justice  of  the Court   for  having  equal  advantage  and   facilities   of accommodation meant for the advocates of the Court, that 49 is to say, for that portion of the building which is in  the occupation  of  the  Bar  Library Club.   In  reply  to  the aforesaid  representation, the petitioners were informed  by tILe  Secretary to the Hon’ble the Chief Justice  that  free

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accommodation  had been provided by the Court, in  different parts  of the Court building, to the different  sections  of the  legal  profession, namely,  for  Barristers,  advocates other  than  Barristers, and attorneys who are  entitled  to practise  in the Court as such, and not for the use  of  any Club.  But it was further pointed out in that  communication from  the  Secretary  to  the  Chief  Justice  that  as  the petitioners had not read in the chambers of a Barrister  for one  year,  they were not entitled to the use of  the  rooms allotted to Barristers of that class.     The  petitioners  made further  representations  to  the Hon’ble the Chief Justice but without any tangible  results. It  further appears that a suit had been instituted  in  the City  Civil  Court,  which  was pending  in  1960,  but  was withdrawn   Later,   with  reference  to   the   rights   of accommodation  similar to that claimed by  the  petitioners, though they were not parties to that st;it.  The petitioners were informed in February, 1960, by the Secretary to Hon’ble the  Chief  Justice  that the Chief  Justice  could  not  do anything  in the matter in view  of the pending  suit.   The petitioners’  grievance seems to be contained in  paragraphs 36  and  37  of their petition, which is  to  the  following effect:                     "The exclusive use of a large portion of               the said space and the reference to or of  the               Advocates who are members of the said Club  as               members of the English Bar and/or reference to               them as counsel and to the other Advocates  as               Advocates  has generally given  an  impression               that  Advocates  who are members of  the  said               Club are superior class of Advocates than  the               Advocates  who are members of the Indian  Bar.               Since your petitioners are not members of  the               said  Club  you,’  petitioners  are  generally               included in the latter category.               1 SCI/64--4               50                     Your  petitioners state that due to  the               discrimination   exercised   and   the    non-               availability  of equal opportunities  to  your               petitioners   as  hereinbefore   stated   your               petitioners  have been and are  being  greatly               prejudiced in their profession. The provisions               made  in  the rules for original side  of  the               said Court and for Barristers are ultra  vires               the Indian Bar Council’s Act and/Or amounts to               discrimination."     Thus,  the  gist of the petitioners’ complaint  is  that they have been denied by the State equality before the  law. The  petitioners  further state that they made  demands  for justice  from  the  respondents, which  they  have  not  yet granted  to them; hence the petitioners pray for a  writ  in the   nature  of  mandamus  directing  them  to  allow   the petitioners to have the use and benefit of the space in  the Court,  now  occupied by the Bar Library Club,  and  not  to discriminate   and/  or  differentiate   between   different sections of the Advocates enrolled in the Court and entitled to practise on the Original side of that Court.     This  Court, in due course, directed the rule  to  issue and  also  granted liberty to the petitioners to  apply  for impleading the Bar Library Club as a party respondent.     In  response to the notice, the Registrar of  the  Court put in an affidavit on behalf and under the direction of the second  respondent---the  Chief Justice of the  Court.   The affidavit  states the relevant facts as  follows.   Separate

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accommodation is provided in the High Court building for (1) Barristers  who practise as advocates of the Court on  being enrolled under the Original side rules of the Court; (2) for Advocates enrolled as such by the High Court and (3) for the Attorneys  of the Court for their legal work in  the  Court. Setting  out the history of the privilege of  occupation  of certain rooms in the Court by the different branches of  the legal  profession, it is stated that free  accommodation  in the  then Supreme Court building was first provided  in  the year 1825 51 to the Barristers then practising before the Supreme  Court, and  that  privilege has been continued in  the  High  Court building  as  well.  The Barristers have  their  association known as the Bar Library Club. The association of the  other advocates   is  known  as  the  Bar  Association,  and   the association of the attorneys is called the Incorporated  Law Society.  Each of the three branches of the profession looks after   the  accommodation  provided  by  the  Court.    The accommodation  thus provided by the Court is only  for  bona fide  professional business.  The Barristers, Advocates  and Attorneys are all licensees in respect of the  accommodation provided   for   them,   which  is   rent-free;   the   cost structural  additions  or  alterations  are  borne  by   the Government;   only electrical installations are to be set up and  maintained by the licensees at their own cost.  It  was further stated that the legal position in regard to the High Court  building  is  and has always been that  it  has  been placed at the disposal of the Hon’ble the Chief Justice  and the  Hon’ble Judges of the Court for the  administration  of justice, and that the allocation of accommodation inside the Court  building is a matter entirely for the Court,  subject of  course  to the condition that no part  of  the  premises should  be  allowed  to be utilised  except  for  bona  fide purposes of the Court’s work.  As regards the representation made  by the petitioner to the Chief Justice, it  is  stated that  the  matter was examined by His Lordship and a  minute was recorded, the relevant portion of which is as follows:                     "But the persons recently called to  the               English Bar under consolidated regulation  No.               43, arc not entitled to practise in this Court               as Barristers. Under the Rules of the Court, a               Barrister  of  England  or  Northern   Ireland               becomes qualified to practise in this Court as               a  Barrister-Advocate only after  reading  for               twelve  months in the Chambers of a  Barrister               in   London  or  in  Calcutta  and  upon   his               enrollment  as  an Advocate  thereafter.   The               Advocates who have recently been called to the               English  Bar under regulation 43 but who  have               not read in Chambers for a year               52               and have not been enrolled as Advocates on the               completion of such reading, are only  entitled               to  practise  in  the  Court,  including   the               Original Side, on the strength of their  being               Advocates of the Appellate Side, but they  are               not   entitled   to  practise  in   Court   as               Barristers.   Consequently,  at  the   present               moment,  they  are not  entitled  to  use  the               rooms  allotted  to  Barristers,  entitled  to               practise as such." It   was   also  stated  in  the  affidavit   that   further representations were made to the Hon’ble the Chief  Justice, but   it  was  not  considered  proper  by  him   that   any

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administrative    order   should   be   passed   on    those representations in view of the pendency of a suit, which  in the  meantime  bad  been filed in the City  Civil  Court  at Calcutta, being Title Suit No. 339 of 1958 with leave  under Order  1  rule  8  of the Code of.  Civil  Procedure  for  a declaration  that all Advocates are entitled to the  use  of the  rooms  in  the  High Court building  now  used  by  the Barristers.     It  appears  that in pursuance of the leave  granted  by this  Court,  Shri  Dipak Kumar Sen and  Shri  Mathura  Nath Banerjee,  joint secretaries of the Bar Library Club of  the Court,  who  were added as respondents 3 and 4,  put  in  an affidavit in answer to the petitioners’ claim, by way of  an objection to the maintainability of the Writ Petition.  They state that they were not public servants, and, therefore, no writ-lay against them or against any other member of the Bar Library  Club, or the Bar Library Club itself, for  anything done  by  them.  They denied the petitioners’  right  to  be members  of the Club or to use the rooms in the  possession. of the Club.  It is further stated that the Bar Library Club is "a private proprietary Association of members governed by its own Rules",  and that the action of the said members  or of the said Club is not amenable to any writ.  They add that the  Hon’ble  the Chief Justice of the Court  was  also  not amenable to any writ for actions complained of; the  Hon’ble the  Chief justice had discharged his administrative  duties and his actions were not justici- 53 able.   Likewise, it was further contended that  the  ’first respondent, the State of West Bengal, also was similarly not amenable  to any  writ  inasmuch as the said respondent  had discharged executive and not judicial functions in  allowing certain accommodation in the High Court building to be  used by the members of the Bar Library Club.  The history of  the establishment of the Club is then set out.  Dealing with the claim of the petitioners, it is stated that by a  resolution of  the  Bar  Library Club, passed on  June  14,  1957,  and confirmed  on  February  14, 1958, it  was  decided  by  the members of the said Club that Advocates of the Calcutta High Court, called to the, Bar under regulation 43, should not be admitted as members of the Bar Library Club.  The  statement in  the affidavit filed under the directions of the  Hon’ble the  Chief  Justice, as aforesaid, to the  effect  that  the accommodation  was  given to Barristers  practising  in  the Calcutta  High  Court as such was not correct and  that  the true  position was that it was "given to the members of  the Bar  Library Club".  It was claimed that  the  accommodation given  respectively to the three Associations,  namely,  the Bar  Library Club, the Bar Association and the  Incorporated Law Society was used and controlled by the said Associations for the benefit of their respective members and persons  who were  not members of the respective associations  could  not claim any legal right to use the accommodation provided  for that  particular association.  In answer to  the  contention that  the  petitioners had been denied equality  before  the law,  it was asserted that the High Court orders  regulating the  manner  in which the different  associations  shall  be provided    accommodation    was   based    on    reasonable classification of legal practitioners, and that there was no discrimination.   It  was  also claimed that  the  Club  had complete discretion in he matter of admission of members  to it; that no ne had a legal  right to claim membership of  th Club  and that as  the petitioners were not members  of  the Club,  they  had  no legal right to  use  the  accommodation allotted  to  it  And, lastly, it  was  contended  that  the

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petition 54 was bad for non-joinder, first, of the Hon’ble Judges of the High Court,  and secondly, of the members of the Bar Library Club,  other  than  those  already  impleaded,  namely,  the respondents 3 and 4 aforesaid.     On  these  pleadings  and further  affidavits  filed  on behalf   of  some  of  the  petitioners  and  some  of   the respondents,  the  matter was placed before  a  Constitution Bench of this Court, presided over by Gajendragadkar J.,  on April 16, 1962, and the Court made the following order:                      "Mr.  A  V. Viswanatha Sastri  for  the               Petitioners wants to raise the larger question               about  the constitutionality of the  allotment               of  rooms to different sections of the Bar  in               the  Calcutta High Court. We think that it  is               desirable that the petitioners should move the               learned  Chief  Justice of the  Calcutta  High               Court and place before him their case that the               allotment of the rooms offends against Art. 14               of  the Constitution and that the  Barristers,               who constitute the Bar Library Club, cannot be               treated  as  constituting  a  branch  of   the               profession by themselves.  Since  this  aspect               of  the  matter  was  not  placed  before  the               learned Chief Justice it is necessary that the               petitioners should pray for redress before the               learned  Chief  Justice of the  Calcutta  High               Court in the first instance before moving this               Court. The petition, is, therefore,  adjourned               for three months to enable the petitioners  to               move the Chief Justice in that behalf."     In pursuance of the order of this Court, set out  above, the petitioners made a further representation to the Hon’ble the Chief Justice of the Court on May 11, 1962, stating that all  advocates enrolled in the Court and entitled to  appear and  plead on the Original side stand on the  same  footing, without  any distinction and/or discrimination, and as  such are entitled to the use of the accommodation allotted to and occupied  by the Bar Library Club in a portion of the  Court building.  They also recited the previous 55 history  of  their representations to the  successive  Chief Justices of the Court and pointed out that the allotment  of separate  accommodation for Barristers as such,  who  cannot practise   as  such,  offended  against  Art.  14   of   the Constitution.   They, therefore, represented to the  Hon’ble the Chief Justice that as advocates of the Court they may be allowed  to use the said space occupied by the  Bar  Library Club and/or its members, and equal rights and privileges for the purpose of carrying on their’ profession may be accorded to them.     The  Bar  Association of the Court  separately  wrote  a letter dated May 22, 1962, representing to the Hon’ble Chief Justice   their  grievances  in  similar  terms.   To   that representation,  the  Secretary  to the  Hon’ble  the  Chief Justice sent an answer dated June 21, 1962.  In that  letter it is stated "that his Lordship thinks that it is  eminently desirable that the Bar Library Club and the Bar  Association should  amalgamate,  and that the rooms in  the  High  Court buildings  allotted  to  the Bar Library Club  and  the  Bar Association  should  no longer remain  in  their   exclusive occupation but should be thrown open to all who are  members of  the  two Associations, on  terms and  conditions  to  be mutually  agreed upon between the two  Associations.........

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and  that  nothing will give His Lordship  greater  pleasure than  to  see  the  two  Associations  merge  into  one  and occupying  the rooms allotted to them jointly from  July  1, when  the Centenary celebration of the Calcutta  High  Court will  begin."  A copy of the said letter was also  forwarded to the petitioners in answer to their representation to  the Chief Justice.  Apparently the two wings of the  profession, represented  by the two organisations aforesaid,  could  not agree  to  such  terms as were contemplated  in  the  letter aforesaid.    The  attempt  at  amalgamation  of   the   two organisations  or to come to any agreed terms  between  them having  failed,  the  Bar Association moved  this  Court  by making an application for intervention by the members of the Bar  Association.   That  application  for  inter- 56 vention,  filed  in July 1962, was allowed by the  Court  on September  27, 1962.  With the application for  intervention the  correspondence between the previous Chief Justices  and the  Association  was enclosed. It is  noteworthy  that  the scope of the representation made by the Association is  much wider  than  the grievance sought to be  ventilated  by  the petitioners in their petition to this Court, as will  appear from the Following extract from their representation to  the Chief Justice:               "Accordingly   we   on  behalf  oF   the   Bar               Association humbly represent ’that no separate               space  may  be allotted to the said  group  of               Advocates  who call themselves Barristers  but               who  practise in this Court as  Advocates  and               are  therefore  in  no way  to  be  separately               treated  from  the Advocates in  general,  and               this  allotment of separate rooms to  the  Bar               Library  Club  offends against Art. 14 of  the               Constitution.  We demand justice and pray  for               redress  of  our aforesaid grievance  so  that               there  should be one Bar Association  for  all               Advocates  practising in this High  Court  and               the rooms now occupied by Bar Library Club may               be allotted to such Bar Association."      In  answer to the petitioners’ further  affidavits  and the  application  for  intervention filed  and  allowed,  as aforesaid, an affidavit was filed in this Court on behalf of respondents 3 and 4 to the effect that accommodation in  the Court  building had been provided for the use of  the  three groups  of lawyers, namely. (1) Banister-Advocates  who  are not  entitled to act and do not act either on  the  Original side  or the Appellate side, and plead only;  (2)  Attorneys who  only  act on the Original side, and  (3)  Non-Barrister Advocates  who both act and plead and who belong to the  Bar Association.   It is also stated that the space occupied  by the  Bar  Library Club is used exclusively  as  library  and reading  room to enable the members of the Club  to  prepare for the hearing of the cases in which they are engaged;  the inner  study  room  of the Club, where  silence  has  to  be maintained, is exclusively reserved 57 for  members oF the Club for the purposes of study only:  in other  rooms  of  the Bar Library Club every member  of  the legal  profession is allowed free access. A  very  important statement was also made in the affidavit to the effect  that in  view of the controversy raised recently about  admission of  non-Barrister  Advocates as members of the  Bar  Library Club, the Club by its resolution adopted on ’March 2,  1962, has altered its rules so as to admit non-Barrister Advocates also as members.  We shall have to say something more  later

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with respect to this.  It is further stated that as a result of the amendment aforesaid, of the rules of the Club,  there is  now  no restriction whatever against any member  of  the legal  profession, not being an Attorney, becoming a  member of  the  Club,  irrespective  of whether  or  not  he  is  a Barrister,   provided   that  he  confines his  practice  to pleading  only.   In  pursuance of this  amendment,  it  was further stated that three Advocates who were not  Barristers had  been recently admitted as members of the Club and  that more such applications have been received for admission   as members.   And, finally, it is said that the  Attorneys  who only  act on the Original side have been given two rooms  in the  Court  building for their occupation, the  Bar  Library Club  whose membership is confined only to  those  advocates who only plead but do not act has been allotted four  rooms, and  the Bar Association whose members are entitled both  to act  and  to  plead  have been allotted  six  rooms  in  the premises of the Court.     Besides those statements in their affidavit, in  answer, the  respondents 3 and 4 have also raised several points  in answer  to the petition, as originally made, as also in  the intervention  petition.  It is contended that  the  original petitioners  or the members of the Bar Association  have  no fundamental  rights which they can enforce by a  writ  under Art. 32 of the Constitution, and that, therefore, they  have no  cause of action.  It is also pointed out that  the  case tried to be made out by the original petitioners and that 58 made  out in the petition for intervention are  inconsistent inasmuch  as the former claim to be admitted to the use  and occupation of the accommodation allotted to the Bar  Library Club  in  preference  to  the  space  occupied  by  the  Bar Association  whereas the interveners represented to  Hon’ble the  Chief  Justice  that there should  be  no  preferential accommodation  given  to the Club and that  both  the  wings should become one.  It is also contended that all the  wings of  the  profession being mere licensees  of  the  Court  in respect of the accommodation allotted respectively to  them, none of the Associations can claim any legal or  fundamental rights.   It is also suggested that the allotment  of  three separate  portions of the Court premises, as aforesaid,  can be justified on the ground    of reasonable  classification, having  regard to the nature of business transacted by  them in the discharge of their respective duties.     It  would thus appear that the condition now  prevailing at  the  Bar  of  the  Calcutta  High  Court  vis-a-vis  the different  sections  is the result of a  historical  process which  began  about two hundred years ago,  soon  after  the grant of the Diwani to the East India Company in 1765.  When the  Supreme Court was established in Calcutta, most of  the work  was  in  the hands of English  Barristers  so  far  as pleading  was concerned, and so far as acting was  concerned it  was  in the hands of attorneys or  firms  of  Attorneys, again mostly British.  Even before the establishment of  the Calcutta  High Court in 1862, the Bar Library Club had  come into existence in 1825 and the Court had granted the members of the English Bar accommodation within the Court precincts. After the establishment of the High Court, this  arrangement continued  and the three sections of the Bar which  came  to function   in   the  High  Court  were   allotted   separate accommodation.   The Bar Library Club continued to have  its separate accommodation from  that allotted to the Vakils, as they  were  called  until  the passing  of  the  Indian  Bar Councils  Act (XXXVIII of 1926). It was again the result  of British rule in India, which

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59 introduced their own legal system in this country, that  the member of the English Bar who practised in the High Court on the original side, or even on the appellate side,  continued to  enjoy higher status in the matter of seniority, so  much so  that a Vakil on the appellate side of the High Court  of even 50 years’ standing would be junior to a Barrister  with even  one   year’s  standing.  This  naturally  led  to  the agitation  for a unified bar with equal rights of  audience, according to seniority in standing, irrespective of  whether he  was a Barrister from England or was a Vakil with  a  law degree  from one of the recognised  universities  in  India. The  result  was the Indian Bar Councils  Act,  (XXXVIII  of 1926).  So far as practice on the original side of the Court was  concerned,  much  depended  on  the  goodwill  of   the Attorneys  or  firms  of Attorneys, who in  course  of  time ceased  to be entirely British in character.  Thus, we  have now most of the members of the English Bar who are  Indians, and so are the Attorneys.  Much of the differences,  between an Advocate who was not a Barrister and an Advocate who  was a  Barrister,  and much of the disabilities  of  the  former class  in the way of appearance on the original  side,  have disappeared  as  a  result of the Indian  Bar  Council  Act, 1926,  and  the Advocates Act (XXV of 1961) which  have  the benefit  of  unifying the Bar of India.  In spite  of  that, vested  interests die hard, and this litigation is a  result of the conflict between vested interests viz. those who wish to  join that group of vested interests, and those who  wish to abolish those interests.  The petition, as filed in  this Court  originally, was based on the grievance that in  spite of  the  fact that those advocates had been  called  to  the English Bar they were not being admitted to the Bar  Library Club,  and  represented an attempt to be admitted  to  those exclusive  rights which were enjoyed by the members  of  the Club. On the other hand, the members of the Bar Association, who  have  intervened later in this   controversy   in  this Court,  have attempted to abolish the exclusiveness  and  to claim  those  rights  for every one who is  entitled  to  be called an Advocate. 60 Successive Chief Justices of the Court, beginning from  late Sir Trevor Harris have sympathized with  the attempt of  the Advocates   of   all  classes  to  get  unified   into   one organisation  on an equal footing, but they rightly  pointed out that the desired result could be achieved only by mutual agreement  amongst  the  two  sections  of  Advocates.   The present Chief Justice  reiterated  in his letter of June 21, 1962,  that the Court would be very pleased to see that  the two  Associations  merge  into  one  and  occupy  the  rooms allotted  to  them jointly with effect from  July  1,  1962, which  was  the  date originally fixed  for’  the  Centenary celebrations  of  the  Court.  The occassion  was  quite  an appropriate   one  for  the  consummation  of  the   desired unification   of   the  entire  Bar  of  the   Court.    But circumstances  did not prove propitious to such a  desirable result.   It only shows that we cannot completely  wipe  out the  past  and that much of’ the legal   system   introduced during  the  British regime must continue for the better  or for  the  worse. The situation has not  been  rendered  less complex by the continued existence of the third wing of  the profession, the Attorneys.  Though opinion has been  sharply divided  as to the desirability of the continuance  of  this old institution imported from England, the fact remains that a  large  section of litigants on the Original side  of  the Court  continues to employ the services of that  class,  and

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those who have been cultivating the good-will of that  class naturally have the advantage on their side.      We  have,  therefore, to take full notice of  the  fact that  there are two sections of Advocates practising at  the Bar of the Court, besides the Attorneys, namely, the members of the Bar Library Club who only plead but do not act,  and, secondly  the  members of the Bar Association who  not  only plead but act also, though there may be many who only  plead but  do not act.  And then there are the Attorneys who  only act.   It is entirely the lookout of the litigants,  through their  attorneys,  to engage as their  advocates,  only  for pleading, such members of the Bar as they 61 choose.    It  is  not  entirely  correct  to  assert   that membership  of  the Club is a determining  factor  in  being chosen to plead a case.  Litigants are naturally  interested in the best results in their litigation and must be presumed to act in the best interests of their cause. And, therefore, what  has happened in the Bombay High Court during the  last 50 years and more, may also happen in the Court, if the  Bar Association  is  able  to throw up advocates  of  the  right caliber.     Viewing  the  whole case from the point of view  of  the litigant  public and the practising lawyers  themselves,  we think  that the best interests of the Court will be  served, and we are only interested in the best interest of the Court itself,   by  recognising  the  necessity  for   the   three categories of legal practitioners in the Court, namely,  (1) those who only plead, (2) those who both plead and act,  and (3)  those who only act.  With that end in view, and at  the instance  of the Court, the members of the Bar Library  Club recognised the need for amending their rules so as to  admit such  advocates  as  would only plead  irrespective  of  the question  whether or not they were Barristers.  Accordingly, they  intimated  to the Court that they had  made  necessary amendments  in their rules.  ’the principal amendment is  in rule 1, which is to this effect:                 "1.  Rule  (1)  shall  be  deleted  and  the               following   shall   be  substituted   in   its               place:---               1. The Bar Library Club shall consist of: -                    (a) Barristers of England or Ireland,  or               members   of  the  Faculty  of  Advocates   in               Scotland  after  passing  the  examination  or               examinations prescribed by the authorities  in               England  or Ireland or Scotland, as  the  case               may  be,  who arc enrolled  Advocates  of  the               Calcutta High Court:                     (b) Other Advocates of the Calcutta High               Court,  who  are entitled to practise  on  the               Original side of the Calcutta High               62               Court  under the rules lot the time  being  as               the  Committee  of the Club may from  time  to               time determine as hereinafter referred to."                   In  Rule 25, the  following  consequential               changes had been made:                      "In  rule 25 after the words  ’purposes               of the Club’ add the words: "-               ’and determine from time to time having regard               the  accommodation in the club the  number  of               the  Advocates mentioned in Rule 1 (b)  herein               to be admitted as members of the Club’."    It  was pointed out on behalf of the petitioners and  the interveners that the Club has, even by amending rule 1  read

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with additions to rule 25, quoted above, reserved to  itself the  right to limit the membership. The  learned  Solicitor- General,   on   behalf  of  the  Bar  Library   Club,   very appropriately intimated to us that the additions to rule 25, objected to on behalf of the petitioners, shall be withdrawn so that the petitioners may be assured that there will be no discrimination exercised in the matter of admission and that any  application  for admission shall be dealt with  on  its merits.   Of course, only those Advocates who undertake  not to  act  shall be eligible for admission as members  of  the Club.     This  arrangement, agreed to by the respondents 3 and  4 representing  their  Club, is a great improvement  upon  the position  as  it was when this Court was moved, and  we  are satisfied that nothing better could have been achieved as  a result of these proceedings.     It will be noticed that we have not dealt with this case in the legalistic way in which it was sought to be presented on   either   side.   We  have  been   chiefly   guided   by considerations  of ’public good’, that is to say,  that  the Court should be assured of efficient and willing  assistance from the Bar.  It is only to be hoped that this forward step is  a  precursor of further improvements  in  the  relations between the 63 different  sections of the Bar so that they may grow into  a unified  bar  with  all the best  traditions  which  it  has inherited  from the past and which it is its duty to  uphold in  the  years to come to the lasting credit  of  the  legal profession and to the lasting benefit of all concerned  with law and litigation.     In  view of what we have said, the final position  which emerges  is this.   There are three sections of the  Bar  in the  Court,  viz., (1) those who only plead, (2)  those  who both  plead  and  act  and (3)  those  who  only  act.  This classification  in  our opinion is reasonable  taking   into account   the   past   history  to  which  we  have  already referred.   Grant  of separate  accommodation  therefore  to these  three sections of the Bar cannot amount to denial  of equality  before the law. The Bar Library Club  has  already agreed  before  us  to change its rules  so  that  the  Club conforms  exactly to the first section;and admission  to  it will  be governed by rules which are common to  all  lawyers who  want  only  to plead;there is therefore  no  reason  to interfere  with accommodation provided by the Court  to  the three  sections of the Bar.  We have also no doubt that  the Chief Justice will see that the undertaking given by the Bar Library  Club will be carried out. We may add that  in  case the  undertaking is not carried out, the Chief Justice  will see  that necessary and appropriate rules are  framed  which will  carry out the purpose for which the  accommodation  is placed at the disposal of the three sections of the Bar  and the  same  are  implemented so that there is  no  denial  of equality  before the law and accommodation is used  for  the three sections we have indicated above.         In  this view of the matter, the petition fails  and is hereby dismissed.  We leave the parties to bear their own costs.                             Petition dismissed. 64