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In Re: Pre-audience of the Acting Advocate General - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberMiscellaneous Petition No. 78 of 1931
Judge
Reported inAIR1932Bom71; (1931)33BOMLR1500
AppellantIn Re: Pre-audience of the Acting Advocate General
Excerpt:
audience, right of--acting advocate general--right of pre-audience of an acting advocate general over other advocates--government of india act, 1915 (5 & 6 geo. v, c. 61), as amended by government of india act, 1916 (6 & 7 geo, v, c. 87), section 114, sub-section. (3)--indian bar councils act (xxxviii of 1926, as amended by act xiii of 1927), section 8, sub-section (b), and sections 4, 8 and 12.;the acting advocate general is entitled to a right of pre-audience over all other advocates in respect of all business, whether for the crown or of a private nature, by virtue of section 114 of the government of india act, 1915, and the indian bar councils act, 1926.;per beaumont g.j. upon the true construction of the indian bar councils act and as a whole, the expression ' advocate..........which he appeared for the crown. since the date of that decision, i understand that in practice a general right of pre-audience has been conceded to the advocate general. probably that was done by treating his office as analogous to that of the attorney general in england. it is not necessary for us to consider whether the right conceded to the advocate general was well-founded or not, because the matter is now governed by statute. so far as the acting advocate general is concerned, the matter has been dealt with on the footing of the decision of this court and he has been conceded a right of pre-audience when appearing for the crown, but not when appearing for a private litigant. mr. taraporewala says that the position is now changed by recent legislation, and i agree with him that.....
Judgment:

John Beaumont, C.J.

1. This is a petition presented by Mr. Tara-porewala as acting Advocate General in which he asks the Court to give directions as to the right of pre-audience in this Court of the acting Advocate General. Mr. Coltman has appeared for the Bar Association, and Sir Chimanlal Setalvad for the Bar Council, and though the matter has not been contested in any hostile spirit, they have been good enough to put forward the argument against the view of the acting Advocate General.

2. The petition has annexed to it a copy of a judgment of a Division Bench of this Court given in October 1865. In that case it was conceded that prior to the Government of India Act of 1858 no right of pre-audience at the bar was enjoyed by the Advocate General, and, therefore, a fortiori no such right was enjoyed by the acting Advocate General. But of course before the Act of 1858 the Advocate General was the servant of the East India Company, and not of the Crown. The Court in the case to which I am referring did not decide definitely what the rights of the Advocate General might be; the Judges only expressed the view that he would at least be entitled to equivalent precedence to that which one of Her Majesty's counsel would be entitled to at the bar of England. But they held that, so far as the acting Advocate General was concerned, he had no right of general preaudience at the bar, but was entitled to pre-audience limited to cases in which he appeared for the Crown. Since the date of that decision, I understand that in practice a general right of pre-audience has been conceded to the Advocate General. Probably that was done by treating his office as analogous to that of the Attorney General in England. It is not necessary for us to consider whether the right conceded to the Advocate General was well-founded or not, because the matter is now governed by statute. So far as the acting Advocate General is concerned, the matter has been dealt with on the footing of the decision of this Court and he has been conceded a right of pre-audience when appearing for the Crown, but not when appearing for a private litigant. Mr. Taraporewala says that the position is now changed by recent legislation, and I agree with him that recent legislation has entirely altered the position and has made the decision given in 1865 no longer applicable.

3. The first Act to which it is necessary to refer is the Government of India Act, 1915. That Act provides in Section 114 that His Majesty may, by warrant under his Royal Sign Manual, appoint an Advocate General for, amongst other places, the Presidency of Bombay. Then it provides that the Advocate General may take on behalf of His Majesty such proceedings as may be taken by His Majesty's Attorney-General in England. Then Sub-section (S) deals with an Acting Advocate General. It provides:--

On the occurrence of a vacancy in the office of advocate-general or daring any absence or deputation of an advocate-general the Governor-General in Council in the case of Bengal, and the local government in other cases, may appoint a person to act as advocate-general; and the person so appointed may exercise powers of an advocate general until some person has been ap. pointed by His Majesty to the office and has entered on the discharge of his duties, or until the advocate-general has returned from his absence or deputation, as the case may be, or until the Governor-General in Council or the local government, as the case may be, cancels the acting appointment.

4. That is the first statutory recognition of aa acting Advocate General, and Mr. Coltman and Sir Ohimanlal Setalvad point out that the Act provides that the person appointed acting Advocate General may exercise the powers of an Advocate General, but does not provide that he is to enjoy all the rights and privileges of an Advocate General.

5. The next Act, which it is necessary to look at and which to my mind is really conclusive of the whole question, is the Indian Bar Councils Act. In the amending Act of 1927, Section 2, which amends Section 8 of the principal Act of 1926, there is contained in sub-s. (4) the following provisions:--

The respective rights of pre-audience of advocates of the High Court shall be determined by seniority:

Provided that the Advocate-General shall have pre-audience over all other advocates, and King's Counsel shall have pre-audience over all advocates except the Advocate-General.

6. Now it seems to me that that is an inclusive and comprehensive provision: it settles the right of pre-audience in all cases. It says that the respective rights of pre-audience of advocates of the High Court shall be determined by seniority, and the only qualification upon that is in the case of the Advocate General and King's Counsel. I asked Mr. Coltman whether on his reading of the Act, which is that ' Advocate General' in that proviso means the actual holder of the office and does not include an acting Advocate General, he would concede that the acting Advocate General was entitled to a right of pre-audience in respect of Crown business, and he said that he did concede that right, though he maintained that the right was not enjoyed by virtue of the office, but by virtue of the principle that in the King's Court, the King's business must come first. Put it seems to me that on Mr. Coltman's reading of the Act that admission could not be maintained in law. The Act provides that the right of pre-audience of advocates shall be determined by seniority, and it says nothing whatever about an advocate conducting the King's business. The only qualification is in respect of the Advocate General and King's Counsel. No doubt it may be said that, if that be the meaning of the Act, it interferes to some extent with the prerogative of the Crown, but under Section 84, Sub-section (a), of the Government of India Act of 1915, a law made by any authority in British India is not to be deemed invalid solely on account of the fact that it affects the prerogative of the Crown. If the effect of the Act be, upon the construction given to it by Mr. Coltman, to take away from the acting Advocate General all rights to pre-audience, whether in respect of Crown business or any other business, that rather disposes one to think that Mr. Coltman's construction is wrong, and that the expression ' Advocate General ' in the proviso to Section 8 (4) indicates the person for the time being lawfully exercising the office of Advocate General, and does not refer to the particular individual who has been appointed by Letters Patent. But in considering the construction of the Act one has of course to look at the whole Act, and there are other provisions which throw some light on the meaning of the expression 'Advocate General.' In the first place, there is the definition in Section 2, Sub-section (6), which says:--

'Advocate-General' includes, where there is no Advocate-General the Government Advocate and, where there is no Advooate-General or Government Advocate, such officer as the local Government may declare to be the Advocate-General for the purposes of this Act.

7. We are not concerned in this Presidency with the 'Government Advocate,' and the definition only applies where there is no Advocate General, and it does not have any effect where there is an Advocate General, but owing to absence somebody has been appointed to act for him. Mr. Coltman says that if the legislature had intended the expression 'Advocate General' to include an acting Advocate General, it would have used apt words to give effect to that intention, and he refers us to other Acts, particularly the Post Office Act and the Administrator General's Act, in which that intention is given effect to. But the argument, I think, is a double edged weapon, because it may be said with force that the legislature must have known, at the time when it passed the Indian Bar Councils Act, that there was power under the Government of India Act to appoint an acting Advocate General, and if it had thought that there was any doubt about what the acting Advocate General's rights were under the Act, it would have provided for the matter in the definition clause. The fact that it has not done so rather suggests that the legislature thought that the expression 'Advocate General' as used throughout the Act would by itself include an acting Advocate General.

8. Then there are two other provisions in the Act which must be looked at. The first is Section 4 which provides that every Bar Council shall consist of fifteen members of whom one shall be the Advocate General, and then later on it provides that the Advocate General of Bombay shall be chairman ex officio of the Bar Council constituted for the High Court at Bombay. If Mr. Colt-man's reading of the Act be right, the effect would be that during any temporary absence of the Advocate General, the Bar Council would be short of one member, and would not have its ex offvcio chairman. Possibly that is what the legislature meant, but it would seem to me more in accordance with the probable intentions of the legislature that the acting Advocate General should take the place on the Bar Council of the Advocate General during his absence.

9. Then there is another material provision in Section 12 which is a section providing for bringing before the High Court cases relating to the exercise of the disciplinary jurisdiction of the Court over advocates, and Sub-section (3) of that section provides that notice of the day fixed for hearing the case in question is to be given to the Advocate General, and the Court is to provide the Advocate General with an opportunity of being heard before orders are passed. No doubt the acting Advocate General would be the person entitled to be heard, because his right to be heard would be one of the powers of the Advocate General which the acting Advocate General is entitled to exercise under Section 114 of the Government of India Act. But if the acting Advocate General is the person entitled to be heard, obviously he must be the person to whom notice of the day of hearing is to be given, and a right to receive a notice is no more a 'power' than is a right of pre-audience. It seems to me quite clear that in that section the expression 'Advocate General' must be used in the sense of the person entitled to exercise the office of the Advocate General.

10. In my judgment, upon the true construction of the Act read as a whole, the expression ' Advocate General ' is used as meaning the person for the time being legally entitled to exercise the powers of the Advocate General. If that is so, then he is given a right of pre-audience in all cases under Section 2 of the amending Act, and all the difficulties which were suggested in argument seem to me to vanish. It was suggested that the Advocate General and the acting Advocate General being necessarily two different persons, it might very well happen that they would be both in Bombay at the same time and that their rights might clash; for instance, the Advocate General might be on deputation in Bombay, and an acting Advocate General might be appointed in his place, but the Advocate General might have time to attend a meeting of the Bar Council, or even to hold a brief in Court, and it was suggested that in that case he would be entitled to his rights as the actual Advocate General, and the acting Advocate General could not have competing rights. In my view of the Act, the rights would belong to the acting Advocate General as the person for the time being lawfully exercising the powers of the office, and the Advocate General, in the somewhat unlikely event which has been suggested of both he and the acting Advocate General being in Bombay at the same time, would be temporarily deprived of his rights, because he would have been temporarily superseded in his office.

11. In my view, therefore, the matter is now disposed of by the Indian Bar Councils Act, and we must, in answer to the petition, declare that, notwithstanding the decision of 1865, by virtue of Section 114 of the Government of India Act, 1915, and the Indian Bar Councils Act of 1926 and the amending Act of 1927, the acting Advocate General is entitled to a right of pre-audience over all other advocates in respect of all business whether for the Crown or of a private nature. Declare accordingly. No order as to costs.

Rangnekar, J.

12. I agree, but as we are taking a view different from that taken by a Division Bench of this Court in 1865, I desire to state shortly my reasons.

13. The question which is now raised on the petition came up before Sir M.R. Sausse C.J. and Mr. Justice Westropp in 1865 and was answered against the acting Advocate General. The ratio decidendi of the judgment, as I understand it, was that the office of the acting Advocate General did not appear to have had any strictly legal origin, and during the temporary absence of the Advocate General, the then subordinate Government nominated a substitute or a locum tenens to perform the duties attached to the office. In this way a usage--to use the words of the judgment--the offspring of necessity arose. Then came the statute 21 & 22 Vic. c. 106 and by the 30th section of the statute the appointment of the acting Advocate General was legalised. The next step in the argument was that this section merely legalised the appointment and did nothing more, and, therefore, whatever the rights and privileges of the acting Advocate General were, they remained in the same position after the Act as they were before it. It was admitted in that case by the petitioner that before the Act he had not claimed and was not given any right of pre-audience at the bar, and, therefore, the learned Judges held that even after the Act he was not entitled to the right which he did not possess before it.

14. Since that decision we have now on the statute book two important statutes, the one passed by Parliament, viz., the Government of India Act, 1915, and, secondly, the Indian Bar Councils Act of 1926, as amended by the amending Act of 1927, enacted by the Indian legislature. The Government of India Act, 1915, was amended in 1916, and under the amended Sub-section (3) of Section 114 the office of the acting Advocate General was for the first time created and recognised. It is clear, therefore, that the only ground of the judgment of the Division Bench in 1865 no longer survives.

15. The next question is what is the position of the acting Advocate General. To determine this one must look at Section 114 of the Government of India Act, 1915, as amended by the Act of 1916, and at the Indian Bar Councils Act of 1926 as amended in 1927. Now under the amended Section 114 of the Government of India Act, it is clear that the person appointed to act as Advocate General has all the powers which the permanent incumbent of that office has, either under the Government of India Act, or under similar statutes prior to it.

16. Whatever the position in England as to the rank, seniority and privileges of members of the bar may be, it is clear from the Indian Bar Councils Act that the question as to appointment of advocates, their rights and privileges, and their seniority are to be determined under the Indian Bar Councils Act and under that Act alone. In England the right of audience in Court is conferred by the Inns of Court and the right of pre-audience or precedence is conferred by the Crown. But in this country after the passing of the Indian Bar Councils Act, these questions of audience as well as precedence have to be answered only in accordance with the provisions of the Indian Bar Councils Act. It is not suggested and cannot be suggested that the Indian Bar Councils Act is ultra vires, having regard to the provisions of Section 84 of the Government of India Act of 1915. Section 8 of the Indian Bar Councils Act lays down the manner in which advocates are to be enrolled. This. section was amended in 1927 and Sub-section (4) of Section 8 now lays down the rules for determining the respective rights of precedence of the advocates enrolled under the Act. Sub-section (4) runs as follows:--

The respective rights of pre-audience of Advocates of the High Court shall be determined by seniority:

Provided that the Advocate General shall have pre-audience over all other Advocates,...

17. The main argument, as I understand it, on behalf of the Bar Association and the Bombay Bar Council, is that the privilege which is granted to the Advocate General under this section is a personal privilege and does not attach to the office. I am unable to find in the language used in Sub-section (4) of Section 8 of the Indian Bar Councils A.ct and in Section 114 of the Government of India Act that the rights and privileges of the Advocate General are personal in the sense that they can be enjoyed by him independently of the office which he holds. As a matter of fact the Letters Patent of Sir Jamshedji Kanga have been produced before us. They show that his appointment was for five years in the first instance and was liable to be renewed. Suppossing at the end of five years Sir Jamshedji Kanga is not re-appointed, what becomes of his so called personal privilege Does he continue to enjoy the privilege of pre-audience conferred upon him by the proviso to sub-Section (4) of Section 8 of the Indian Bar Councils Act even if he vacates the office which he is holding A personal privilege, in my opinion, is a privilege which is capable of being enjoyed by the person on whom it is conferred, independently, of any official position in connection with which it was conferred, until recalled or revoked by appropriate proceedings. As an example of a personal privilege, I may refer to the practice of the Crown granting patents of precedence to members of the bar in England. These patents expressly provided that the grantees should have a right of precedence after a particular barrister named in the patents.

18. The next question is whether the person who is appointed to act in the temporary vacancy of the Advocate General is entitled to the same privileges conferred by the Indian Bar Councils Act on the permanent incumbent of that office. Now when a statute confers a power or imposes a duty, then unless a contrary intention appears, the power may be exercised and duty performed from time to time as occasion arises, and when the power is so conferred or the duty imposed on the holder of the office as such, it may be exercised or performed by the holder for the time being. No authority is necessary for this proposition, but if one is needed, I may refer to Section 32 (1) of the English Interpretation Act (1889) 52 Vic. c. 63. The Government of India Act of 1915, as amended by the Act of 1916, is also to the same effect, and it is not disputed that the acting Advocate General has in the past been exercising the powers and performing the duties attached to the office of the Advocate General. Now there are several statutes which confer special powers on the Advocate General, some of which are in the nature of rights or privileges. It is not necessary to examine in detail these statutes, but reference may be made to the Civil Procedure Code, the Criminal Procedure Code, and, lastly, the Indian Bar Councils Act. Taking the last Act, as is pointed out by my Lord the Chief Justice, it is difficult to see how the acting Advocate General can perform or can exercise some of the duties and rights which are conferred upon him under the Indian Bar Councils Act, or how the Act can be worked as to some of its provisions unless you read into the word 'Advocate General' wherever it occurs the words 'acting Advocate General' or ' the person lawfully appointed to exercise the office of the Advocate General during the temporary absence of the permanent incumbent'. As a general rule, a word, I think, is to be construed thoughout a statute in the same sense. Therefore, if you read the words 'acting Advocate General' into the words 'Advocate General', in, say, Section 4 or Section 12 of the Indian Bar Councils Act, I am unable to see why it could not be read into the words 'Advocate General' in Sub-section (4) of Section 8 of the Indian Bar Councils Act.

19. A reasonable construction should, if possible, prevail, and it must not be assumed that legislature foresees every result which may accrue from the use of a particular word and yet effect must be given to every part of the statute even if the consequence be a hardship on some individuals. Where the meaning, the object, and the spirit, of a statute are clear from the title, preamble or otherwise, it should not be reduced to a nullity by a literal following of the language or the words used, which may be due to a want of skill on the part of the draftsman, and in certain circumstances it is permissible to supply the omitted words or expressions. These rules of construction are well recognised. In my opinion judicial interpretation should be directed to avoiding consequences which are inconvenient and should be such as would in effect carry out the intention and spirit of the Act. As pointed out by the learned Chief Justice, to adopt the reading of Sub-section (4) of Section 8 of the Indian Bar Councils Act, insisted upon by Mr. Coltman, would be to reduce the Act to a nullity in some respects. Further, if the acting Advocate General cannot claim precedence under the sub-section, it is difficult to see how, in view of the precise and definite rule laid down therein, he can be allowed, as he always has been, precedence in respect of Crown business.

20. The next argument is that the expression 'Advocate General', as defined in Section 2 of the Indian Bar Councils Act, does not include the acting Advocate General. It is further contended that if the legislature intended to place the acting Advocate General in the same position as the permanent incumbent of the office of the Advocate General, they would have said so in Section 2. Now Section 2 does not purport to define the expression 'Advocate General'. It simply lays down that certain persons or officers are included in the expression 'Advocate General'. This became necessary by reason of the well known fact that in several provinces the principal law officers are described in different ways. It is only in the three major Presidencies that the principal law officer is called the ' Advocate General'. In some provinces he is known as the ' Government Advocate ' and in others the ' Government Pleader' and so on.

21. It is, undoubtedly, true that there are some statutes in which a person who is appointed to act for a permanent incumbent of a particular office is specifically given the powers and the privileges attached to the office. But we have to take the Act as a whole and to construe it in the light and spirit of the Act. It is not permissible to attribute ignorance to legislature of the fact that the Advocate General may remain absent either on leave or deputation or a vacancy may arise by reason of the death or resignation, and that under the Government of India Act a person may be appointed to act in his place, and it seems to me that the very fact that the legislature have not specifically referred to the acting Advocate General in Section 2 of the Indian Bar Councils Act is an argument in favour of the construction we are placing on sub Section (4) of Section 8 of the Indian Bar Councils Act.

22. Another contention is with regard to a possible conflict which may arise in the event of the permanent holder of the office and the acting Advocate General being present in the Court or in the Presidency at the same time. The answer to that, however, is provided by the provisions of Sub-section (3) of Section 114 of the Government of India Act, 1915. It is clear from that sub-section that the appointment of the acting Advocate General lasts until the Advocate General, i.e., the permanent incumbent of the office, has returned from his absence or deputation or until the acting appointment is cancelled. Therefore, once a person is appointed to act in place of the permanent holder of the office of the Advocate General, the office is legally full until the appointment is terminated, and until then the duties of the office can only be discharged by the acting incumbent.

23. Reading the Indian Bar Councils Act as a whole, I have come to the conclusion that it was the intention of the legislature to include the acting Advocate General in the expression 'Advocate General' wherever it occurs, and I therefore agree with the order proposed by my Lord the Chief Justice.

Barlee, J.

24. In view of what has been said by his Lordship the Chief Justice and my learned brother Rangnekar, I have very little to say. It is clear law that privileges once conferred can only be taken away by the clear words of a statute or by necessary implication. There are no clear words here and we have to see whether there is any necessary implication in the Indian Bar Councils Act that the term 'Advocate General' wherever used in that Act includes the term 'acting Advocate General.' I think that such an implication can be found. I refer only to Section 4 and Section 12 of the Act which have been referred to by my Lord the Chief Justice, These are important sections of the Act, Section 12 being amongst the most important since it occurs among the sections dealing with disciplinary action. Now Section 4, Sub-section (1), says that every Bar Council shall consist of fifteen members of whom one shall be the Advocate General. If we turn to Section 114 of the Government of India Act, 1915, we find that this is incomplete as it stands because the acting Advocate General has all the powers of an Advocate General for the time being and has the power of voting at the Bar Council. In the case of a public officer I think that powers include rights, and, therefore, in my opinion the section rightly interpreted means the Advocate General or the acting Advocate General, In Section 12, it is enacted that notice must be given to the 'Advocate General.' For similar reasons 1 think this must mean the Advocate General or the acting Advocate General. To hold otherwise, it seems to me would mean that the Indian Bar Councils Act by implication amends Section 114 of the Goverment of India Act and that Section 114 must run 'the person so appointed may exercise the powers of an Advocate General with the exception of those powers which are given under the Bar Councils Act.' This cannot be implied. So we must adopt the alternative and suppose that when the legislature referred to the Advocate General in these sections of the Indian Bar Councils Act, it meant to include an acting Advocate General. It is a general rule that a word must be interpreted in the same sense in every part of an Act, and it follows that the term 'Advocate General' in Section 8 includes the term ' Acting Advocate General.' I agree, therefore, with the order proposed by my Lord the Chief Justice.


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