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In Re: Lily Isabel Thomas - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1964SC855; 1964CriLJ724; [1964]6SCR229
ActsConstitution of India - Articles 32, 145 and 145(1); Advocates Act, 1961 - Sections 52 and 58(3); Supreme Court Rules, 1950 - Order IV - Rules 16 and 17; Supreme Court (Amendment) Rules, 1962
AppellantIn Re: Lily Isabel Thomas
Cases ReferredAswini Kumar Ghosh and Anr. v. Arabinda Bose and Anr.
Excerpt:
.....legislative power of the parliament and the rule making power of the court- it was held that the words 'right to practice' would in its normal connotation take in not merely right to plead but the right to act as well- it was further held that there was no question of conflict between the legislative power of the parliament and the rule making power of the court, because by reason of the opening words of article 145 of the constitution of india, any rule made by this court would have operation only subject to laws made by parliament on the subject of the entitlement to practice. - - 20 of theadvocates' act, is entitled to plead, only those advocates who are registeredas 'advocates on record' are entitled to act as well, for rule 17 oforder provides :17. an advocate on recordshall..........9. nevertheless the petitioner, as stated earlier, is certainly right in hersubmission that the words 'right to practise' would in its normal connotationtake in, not merely right to plead but the right to act as well and that is whywe said that if no rules had been made by the supreme court restricting the rightto act, the petitioner could undoubtedly have right both to plead as well as toact. 10. but we have already pointed out that under s. 58(3) of the act, theright conferred on advocates enrolled under the bar councils act to practise inthe supreme court is made subject to any rules made by this court. to reinforcethis position there is a saving enacted by s. 52 of the advocates act whichspecifically saves the powers of this court to make rules under art. 145.section 52 reads :-.....
Judgment:

Ayyangar, J.

1. The proper construction of Art. 145(1)(a) of the Constitution in thecontext of a prayer for a declaration that rule 16 of Order IV of the SupremeCourt Rules as invalid is the principal point raised in this petition which hasbeen filed by an Advocate who under the Advocates Act, 1961, is entitled topractise in this Court.

2. The petitioner was enrolled in the Madras High Court on November 15, 1955under the Indian Bar Councils Act, 1926 and was admitted to the rolls of thisCourt on October 29, 1960 under Order IV of the Supreme Court Rules as the thenstood. She states that as an Advocate entitled to practise in this Court, sheis entitled as of right not merely to plead but also to act, and that the rulesof this Court which prescribe qualifications before she could be permitted toact are therefore invalid. The prayer which she makes by her petition istherefore for a declaration that rule 16(1) of Order IV of the Supreme CourtRules as amended in 1962 which contains this prescription of qualifications bedeclared ultra vires of this Court and a further declaration that she is entitledto practise as an Advocate on record in this Court without conforming to therequirements now imposed by the impugned rule.

3. Rule 16 whose validity is challenged runs :

'16. No Advocate shall bequalified to be registered as an Advocate on Record unless he -

(1) has undergone training forone year with an Advocate on Record approved by the Court, and has thereafterpassed such tests as may be held by the Court for Advocates who apply to beregistered as Advocates on Record, particulars whereof shall be notified in theGazette of India from time to time; provided however, that an Attorney shall beexempted from such training and test;

(2) has an office in Delhiwithin a radius of 10 miles from the Court House and gives an undertaking toemploy, within one month of his being registered as Advocate on Record aregistered clerk; and

(3) pays a registration fee ofRs. 25'.

4. It might be mentioned that under the Rules though every Advocate whosename is maintained in the common roll of Advocates prepared under s. 20 of theAdvocates' Act, is entitled to plead, only those Advocates who are registeredas 'Advocates on record' are entitled to act as well, for rule 17 ofOrder provides :

'17. An Advocate on Recordshall be entitled to act as well as plead for any party in a proceeding on hisfiling in the proceeding a memorandum of appearance accompanied by aVakalatnama duly executed by the party in the prescribed form.

No Advocate other than anAdvocate on Record shall be entitled to file an appearance or act for a partyin the Court.'

5. The contention urged by the petitioner who argued her case in person andpresented 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 anadvocate on the roll of any High Court under the Indian Bar Councils Act, 1926or who has been enrolled as an advocate under this Act shall, until Chapter IVcomes 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'

6. she is entitled 'as of right to practise' in this Court, andshe claims that the 'right to practise' would include not merely theright to plead, but also the right to act. She is right so far. Her furthersubmission is as regards the scope and content of the rules which mightlawfully be made by this Court. Undoubtedly, if there were no rules made by theSupreme Court of if, as the petitioner contends, the rules now made - Order IVRules 16 and 17 - are invalid the petitioner would be entitled not merely toplead as she is now entitled to, but also to act which latter she is nowprevented by rule 17 unless she has complied with requirement of rule 16.

7. The question then for consideration is whether the impugned rules arevalid. This depends upon the proper construction Art. 145(1)(a) by virtue ofwhich the impugned rule has been framed, which reads :

'145. (1) Subject to theprovisions of any law made by Parliament, the Supreme Court may from time totime, with the approval of the President, make rules for regulating generallythe practice and procedure of the Court including -

(a) rules as to the personspractising before the court;'

8. As regards this Article there are two matters to which attention might bedirected. By the opening words of the Article the rules made by this Court aresubject to the provision of any law made by Parliament, so that if there is anyprovision in a law made by Parliament by which either the right to make therule is restricted or which contains provisions contrary to the rules, it isbeyond dispute that the law made by Parliament would prevail. It is thesubmission of the petitioner that s. 58(3) quoted earlier, is such a law madeby Parliament and that the absolute right granted to persons in the position ofthe petitioner to 'practise as of right' cannot be controlled byrules made by this Court. In this connection our attention was invited to thedecision of this Court in Aswini Kumar Ghosh and Anr. v. Arabinda Bose and Anr. : [1953]4SCR1 . Here this Court explained what the expression 'right ofpractise' meant. It was laid down that these words which occurred in theSupreme Court Advocates (Practise in High Court) Act, 1951 whose s. 2 enacted'Every Advocate of the Supreme Court shall be entitled as of right topractise in any High Court whether or not he is an Advocate of that HighCourt' meant that such an Advocate was entitled not merely to plead but toact as well, and that the enactment prevailed notwithstanding any rule made bythe High Courts of Calcutta and Bombay restricting the right to act on theoriginal sides of those courts. The decision, however, does not carry thematter far, because it was based on the inconsistency between 'the rightto practise as of right' conferred by the enactment of 1951 and the savingas regards the rule making power of the High Courts of Bombay and Calcutta torestrict 'the right to act' on the original side of those court whichwas contained in the Bar Councils Act 1926. This Court held that it was a caseof an implied repeal of that saving by the later legislation.

9. Nevertheless the petitioner, as stated earlier, is certainly right in hersubmission that the words 'right to practise' would in its normal connotationtake in, not merely right to plead but the right to act as well and that is whywe said that if no rules had been made by the Supreme Court restricting the rightto act, the petitioner could undoubtedly have right both to plead as well as toact.

10. But we have already pointed out that under s. 58(3) of the Act, theright conferred on Advocates enrolled under the Bar Councils Act to practise inthe Supreme Court is made subject to any rules made by this Court. To reinforcethis position there is a saving enacted by s. 52 of the Advocates Act whichspecifically saves the powers of this Court to make rules under Art. 145.Section 52 reads :-

'52. Nothing in this Actshall be deemed to affect the power of the Supreme Court to make rules underarticle 145 of the Constitution

(a) for laying down theconditions subject to which a senior advocate shall be entitled to practise inthat Court;

(b) for determining the personswho shall be entitled to act in that behalf.'

11. In view of the saving which is repeated in s. 52, there is no questionof the rule restricting the right to act to a certain class of advocates asbeing contrary to a law made by Parliament. The only question for considerationis whether Art. 145(1)(a) is sufficient to empower this Court to frame theimpugned rules.

12. The argument addressed to us with considerable earnestness was thatunder the Article the rules to be framed under the items (a) to (i) were all tobe framed for regulating the practice and procedure of the Court which sheurged indicated the underlying purpose with which the rule making power wasvested in the Court. Secondly she urged that if head (a) - in sub-Article (1)reading 'rules as to the persons practising before the Court', weretreated as an independent subject, entirely, divorced from the context of theopening words 'practice and procedure of the Court', even then thepower to make the rule was confined to the regulation of the conduct of thepersons practising i.e. entitled under the law to practise and so practisingbefore the Court.

13. 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 torefer to them. They would have been relevant and might require seriousconsideration if the entire power to make the rule was to depend merely on thewords 'regulating the practice and procedure of the Court' but theArticle specifically makes provision enabling rules to be made 'as topersons practising before the Court.' We are inclined to read item (a) asan independent head of rule making power and not as merely a part of a power tomake rules for 'regulating the practice and procedure of the Court.'The word 'including' which precedes the enumeration of the items (a) to (i) aswell as the subject matter of item (a), stamp it as an independent head ofpower.

14. We do not, therefore, propose to deal with what exactly would have beenthe content of a 'regulation of practice and procedure.' but shallproceed to consider the meaning of the words 'Rules as to the personspractising before the Court' because if the rules now impugned could bejustified as within this power their validity cannot be impeached. Now asregards 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. VIIthe last portion of which reads :

'Persons entitled to practise before the SupremeCourt.'

15. Relying on the contrast between the two expressions 'personspractising' and 'persons entitled to practise' the submissionwas that the words 'persons practising before the Court' was narrowerand gave this Court power to frame rules only to determine the manner in whichpersons who had obtained a right to practise under a law made by Parliament byvirtue of its power under entry 77 could exercise that right. In thisconnection she drew a distinction between 'being entitled to practise' whichwould include determining or prescribing the qualifications that a personshould possess before becoming entitled to practise, which she urged was thesubject matter of entry 77, and a rule as to 'a person practising before acourt' which was the second stage after the right to practice had beenobtained by Parliamentary legislation. In other words, the submission was thatby a rule made under Art. 145(1)(a) this Court could neither entitle a personto practise nor impose qualifications as to the right to practise - these beingmatters entirely within entry 77 and therefore exclusively for parliamentarylegislation.

16. 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 learnedAdditional Solicitor-General was well-founded in his submission that if, forinstance, there was no law made by Parliament entitling any person to practisebefore this Court, the construction suggested by the applicant would mean thatthis Court could not make a rule prescribing qualifications for persons topractise in this Court. In this connection it is interesting to notice that thewords used in Art. 145(1)(a) have been taken substantially from s. 214(1) ofthe Government of India Act, 1935. That section ran, to quote the materialwords :

'The Federal Court may from time to time, with theapproval of the Governor-General in his discretion make rules of Court forregulating generally the practice and procedure of the Court including rules asto the persons practising before the Court.....'

17. The Government of India Act, 1935 did not in its legislative lists havea 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 ofthose rules provision was made prescribing qualifications for the enrolment asAdvocates of the Federal Court. Advocates entitled to practise in the HighCourts with a standing of 5 years on the rolls of High Court and who satisfiedcertain requisite conditions were entitled to be enrolled as Advocates, whilefor enrolment as Senior Advocates a standing of 10 years as an Advocates a of aHigh Court Bar was prescribed. We are pointing this out only for the purpose ofshowing that the words 'as to the persons practising before theCourt' were then used in a comprehensive sense so as to include a rule notmerely as to the manner of practice to but also of the right to practise or theentitlement to practice. Those words which are repeated in Art. 145(1)(a) havestill the same content. We ought to add that there is no anomaly involved inthe construction that this Court can by its rules make provision prescribingqualifications entitling persons to practise before it, and that Parliament cando likewise. There is no question of a conflict between the legislative powerof Parliament and the rule-making power of this Court, because by reason of theopening words of Art. 145, any rule made by this Court would have operationonly subject to laws made by Parliament on the subject of the entitlement topractise. We are, therefore, clearly of the opinion that on the express termsof Art. 145(1)(a) the impugned rules 16 and 17 are valid and within therule-making power.

18. The learned Additional-Solicitor made a further submission that the rulecould be justified under the inherent powers of the Court and relied for thispurpose on the decision of this Court in in re : Sant Ram : [1960]3SCR499 the inherent powers of this Court have been referredto. In the view we take about the construction of Art. 145(1)(a) we do notthink it necessary to rest our decision on the inherent powers of this Court toframe a rule of this sort.

19. The petition, therefore, fails and is rejected.

20. Petition dismissed.


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