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Sunday, August 28, 2016

Constitutional validity of the provisions of Rule 3 and Rule 3A of Chapter XXIV of the Allahabad High Court Rules, 1952=right to practice as an Advocate is not an absolute right and it was only a statutory right which is controlled by the provisions of the Act.- The High Court has power to formulate rules for regulating proceedings inside the court. Such power should not be confused with the right to practice law. The court has supervisory power over the right of an Advocate to appear and conduct cases in the court.-the right to practice in the right to appear in courts are not synonymous. Under Section 34 of the Act, the High Court has power to make rules for regulating proceedings inside the court.We, thus, are of the opinion that Rules 3 and 3A of the Allahabad High Court Rules, 1952 and perfectly valid, legal and do not violate the right of the appellant under Article 19(1)(g) of the Constitution of India. The appeal, therefore, fails and is hereby dismissed. There shall, however, be no order as to cost.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 6120 OF 2016


|JAMSHED ANSARI                             |.....APPELLANT(S)            |
|VERSUS                                     |                             |
|HIGH COURT OF JUDICATURE AT ALLAHABAD &    |.....RESPONDENT(S)           |
|ORS.                                       |                             |



                               J U D G M E N T


A.K. SIKRI, J.

                 The appellant has challenged the judgment dated  28.04.2015
passed by the High Court of Judicature at Allahabad  whereby  writ  petition
filed by the appellant has been dismissed.  In the said writ  petition,  the
appellant had challenged the Constitutional validity of  the  provisions  of
Rule 3 and Rule 3A of Chapter XXIV of the Allahabad High Court  Rules,  1952
(hereinafter referred to as the 'Rules').   The  short  order  of  the  High
Court repelling the said challenge  states  that  a  similar  challenge  had
already been rejected by the same Court in Shashi  Kant  Upadhyay,  Advocate
v. High Court of Judicature at Allahabad (Writ  –  C.  No.  65298  of  2014)
decided on 26.03.2015.

2.    Appellant's challenge to the aforesaid Rules is mainly on  the  ground
that these Rules put an unreasonable restriction on his  right  to  practice
as an Advocate and are also ultra vires the provisions of Section 30 of  the
Advocates Act, 1961 (hereinafter referred to as the 'Act').  The High  Court
of Allahabad has framed the Rules in  question  which  came  into  force  on
15.09.1952. Chapter XXIV thereof relates  to  “Rules  Framed  under  Section
34(1) read with Section 16(2) of  the  Advocates  Act,  1961”.   As  we  are
concerned with the validity of Rule 3 and Rule 3A of the said  Chapter,  the
same are reproduced below:
“3.  Advocate who is not on the Roll of Advocates : An advocate who  is  not
on the Roll of Advocate or the Bar Council of the State in which  the  Court
is situated, shall not appear, act or plead in such Court, unless  he  files
an appointment along with an advocate who is on the Roll of such  State  Bar
Council and who is ordinarily practicing in such Court.

In cases in which a party is represented  by  more  than  one  advocate,  it
shall be necessary for all of them to file a joint appointment or  for  each
of them to file a separate one.

3-A.  (i) Unless the Court grants leave, an Advocate who is not on the  Roll
of Advocates in the High Court at Allahabad or Lucknow shall not be  allowed
to appear, act or plead in the High Court at Allahabad  or  Lucknow  as  the
case might be unless he files appointment along with an Advocate who  is  on
such roll for  Allahabad  Cases  at  Allahabad  and  for  Lucknow  Cases  at
Lucknow.

The High Court shall prepare a Roll of Advocates in Parts  'A'  and  'B'  of
those who ordinarily practice in the High Court, Part 'A' for Allahabad  and
Part 'B' for Lucknow.

The Roll of Advocates shall bear in regard to  each  advocate  entered,  his
full name, father's  name,  passport  size  coloured  photograph,  enrolment
number, date of enrolment, complete postal address  both  of  residence  and
office which shall be in the municipal limits of the city  of  Allahabad  or
Lucknow as the case might be.

The Rolls shall be prepared and  revised  periodically  in  the  manner  and
under the authority as may be prescribed by the Chief Justice.

(v)  This Rule 3-A shall come into force after  notification  by  the  Chief
Justice that both the Rolls for Allahabad and Lucknow in Parts 'A'  and  'B'
are complete.

It is clear that as per Rule 3, an Advocate  who  is  not  on  the  Roll  of
Advocate or the Bar Council of the State is not allowed to  appear,  act  or
plead in the said Court unless  he  files  an  appointment  along  with  the
advocate who is on the Roll of such State  Bar  Council  and  is  ordinarily
practicing in that Court.  The impact of this Rule is  that  for  appearance
in Allahabad High Court, an Advocate who is registered with the Bar  Council
of the State of Uttar Pradesh is allowed to appear,  act  or  plead  in  the
said Court only when he files his Vakalatnama along with an Advocate who  is
enrolled with Bar Council of Uttar Pradesh and is ordinarily  practicing  in
the Allahabad High Court (hereinafter referred to as the 'local  Advocate').
 Roll of Advocate is to be prepared by the High Court in terms  of  Rule  3-
A(ii), both for Allahabad (which is the main seat of  the  High  Court)  and
Lucknow (which is the Bench of the Allahabad High Court).  Rule  3A  puts  a
further rider for appearance of an Advocate in the High Court  at  Allahabad
or Lucknow inasmuch as an Advocate who is not on the Roll of  Advocates  for
Allahabad cases at Allahabad and for Lucknow cases at Lucknow is allowed  to
appear, act or plead at Allahabad or Lucknow, as the  case  may  be,  unless
appearance is put in along  with  a  local  Advocate.   Notwithstanding  the
above, he can still be allowed to appear after obtaining the  leave  of  the
Court.

Appellant, as an Advocate, had filed a writ petition in the  High  Court  at
Allahabad but the Registry of the High Court refused to accept his  petition
as the appellant is not enrolled with the Bar Council of  U.P.  and  he  had
not fulfilled the requirement of the aforesaid Rules by  filing  appointment
along with a local Advocate.  Accordingly, he engaged a local  Advocate  for
Allahabad cases at Allahabad.  At the same time, he filed the writ  petition
in question challenging the validity of the Rules which has  been  dismissed
by the impugned judgment, as pointed out above.

It is the contention of the appellant, who  appeared  in  person,  that  the
right to practice of advocates in any Court in  India  has  been  recognized
and granted by Section 30 of the  Act  and  right  to  practice  is  also  a
fundamental right guaranteed under Article 19(1)(g) of the  Constitution  of
India.  He submitted that the impugned Rules are made by the High  Court  in
exercise of powers under Section 34 of the Act which provision  confers  the
power on the High Court to only lay down  conditions  subject  to  which  an
Advocate shall be permitted to practice in the High  Court  and  the  Courts
subordinate thereto, but it does not empower the High  Court  to  frame  the
Rules laying down prohibition from appearance  and  the  Rules  in  question
amount to prohibition or unreasonable restrictions.  It  is  further  argued
that as per the provisions of Article 22 of the Constitution of  India  read
with Section 303 of  the  Code  of  Criminal  Procedure,  citizens  of  this
country   are   given   a   right   to   defend    themselves    by    legal
practitioner/pleader of their choice.  According to him, the impugned  Rules
have the effect of denying this choice to the citizens as well.
            In support of aforesaid submissions, the appellant has  referred
to the judgment of the High Court of Patna in the case of  Anju  Mishra  and
Ors. v. The  High  Court  of  Judicature  at  Patna  and  Ors.  rendered  on
17.07.2015 in Civil Writ Jurisdiction Case Nos.10185 and 19862 of  2010  and
connected matters by the Full Bench of the Patna High Court.   He  submitted
that the said High Court has declared similar  Rules  enacted  by  the  High
Court of Patna as unconstitutional and ultra vires Section 30 of the Act.

This appeal is contested by the respondents/High Court  of  Allahabad.   Bar
Council of India was allowed to  intervene  in  the  matter.   It  has  also
supported the respondents and taken the position that the Rules in  question
are valid and does not suffer from the vice  of  unconstitutionality.   This
Court had also appointed Mr. P. Vishwanathan Shetty, Senior Advocate as  the
Amicus Curiae who has filed the written submissions, wherein he  has  stated
that after examining the legal position, according  to  him,  the  Rules  in
question are valid and proper.

Mr.  Rakesh  Dwivedi,  Senior  Advocate,  who  appeared  on  behalf  of  the
respondent/High Court submitted that  Rules have  been  made  under  Article
225 of the Constitution of India and Section 34 of the Act.  He argued  that
no doubt Article 19(1)(g) of the Constitution of India gives  a  fundamental
right to practice any profession or to carry on  any  occupation,  trade  or
business, nevertheless, that right is subject to the  limitations  contained
under Article 19(6) of the Constitution of India which  empowers  the  State
to make any law imposing reasonable restrictions on  the  exercise  of  such
rights in the interest of  general  public.   He  submitted  that  right  to
practice law or right to appear, act or plead in a court of law  is  not  an
absolute right but is subject to reasonable restrictions and  the  Rules  in
question requiring Advocates to be enrolled with the State Bar  Council  and
the role of the High Court is nothing but a reasonable  restriction  on  the
right to practice.  Mr. Dwivedi argued that the rationale  behind  the  Rule
is to fix accountability on the Advocates practicing before the High  Court.
 The Rules also help in  regulating  the  functioning  of  the  Court.   The
strength of the Bar in the State is enormous  and  a  large  number  of  law
graduate pass out every year in the State of U.P.  and  enter  active  legal
practice.  It is important for the  orderly  functioning  of  the  Allahabad
High Court that Rolls are maintained in Order to effect service  of  notices
and copies of pleadings and  ensure  regular  procedural  compliances.   The
same will not be possible if proper records of Advocates practicing  in  the
High Court are not maintained in the High Court.  He also argued  that  Rule
3 and Rule 3A of the Rules are merely regulatory provisions and there is  no
absolute restriction or prohibition on the right to  practice.   Any  person
who is not on the Roll of Advocates maintained by the High Court, may  still
appear, act and plead by filing appointment of a local Advocate  or  he  may
take leave of the court to appear, even though he may not be on the Roll  of
the High Court.  These  provisions  are  in  the  interest  of  the  general
public, especially the litigants before the High  Court  and  also  for  the
administration of Justice in the State.  Mr. Dwivedi further submitted  that
right to practice conferred under Section 30 of the Act is subject  to  rule
making power of the High Court under Section 34 of the Act and while  making
Rules, High Court has a right and duty to regulate the conduct  of  its  own
proceedings.  Therefore, the impugned Rules are not ultra vires  Section  30
of the Act.   Learned  Senior  Counsel  also  pointed  out  the  Full  Bench
judgment of Patna High Court relied upon by the appellant had  already  been
recalled by the said High Court  in  the  review  petition  that  was  filed
seeking review of the judgment and, therefore, no sustenance  can  be  taken
from the said judgment.  Mr. Dwivedi also referred to certain  judgments  of
this Court to support his submission that Rules in  question  were  only  in
the nature of regulatory provisions.

Almost on the same lines, written  submissions  are  filed  by  the  learned
Amicus Curiae and the oral arguments were advanced by  the  learned  counsel
appearing for the Bar Council of India.

We have given due consideration to the respective submissions.

Article 19 of the Constitution of India guarantees certain freedoms  to  the
citizens of this country which includes right to  practice  any  profession,
or to carry on any occupation, trade or business.  It, therefore,  naturally
follows that right to practice law, which is a profession, is a  fundamental
right that is conferred upon all citizens of this  country.   Therefore,  it
can be said that the appellant has right to appear in  any  Court  in  India
which would include right to appear and  argue  the  matters  even  in  High
Court of Allahabad.

The respondents, however, contend that right of the appellant to  appear  in
the High Court of Allahabad has not been taken away by the  impugned  Rules.
As per them, these Rules are only regulatory in nature and the main  purpose
is to impose reasonable restrictions in the interest of general  public.  On
this basis, the attempt of the respondents is to save  the  aforesaid  Rules
by invoking clause (6) of Article 19.  Article 19(6) is worded as under:
“Article 19(6) : Nothing in sub clause (g) of the said clause  shall  affect
the operation of any existing law in so far as it imposes,  or  prevent  the
State from making any law imposing, in the interests of the general  public,
reasonable restrictions on the exercise of the right conferred by  the  said
sub clause, and, in particular, nothing in the said sub clause shall  affect
the operation of any existing law in so far as it  relates  to,  or  prevent
the State from making any law relating to,
(i)  the professional or technical qualifications necessary  for  practising
any profession or carrying on any occupation, trade or business, or
(ii)   the  carrying  on  by  the  State,  or  by  a  corporation  owned  or
controlled by the State,  of  any  trade,  business,  industry  or  service,
whether to the exclusion, complete or partial, of citizens or otherwise.”


            The appellant, on the other hand, has submitted that  the  Rules
do  not  amount  to  reasonable  restrictions  but  are  in  the  nature  of
prohibition inasmuch as a lawyer who is not enrolled with U.P.  Bar  Council
or on the rolls of Allahabad High Court is not  allowed  to  appear  in  the
said Court.

In the first instance, therefore, it needs to be determined  as  to  whether
the Rules in question  are  in  the  nature  of  restrictions  or  they  are
prohibitory in nature.  Our answer to this question is that Rules 3  and  3A
of the Rules are regulatory provisions and do not impose  a  prohibition  on
practice of law.  These Rules prescribe that  an  Advocate  who  is  not  on
rolls of Advocate in the High Court is  obligated  to  file  an  appointment
along with a local Advocate. There is no absolute bar to appear.   In  fact,
with the leave of the Court, an Advocate is still permitted to  appear  even
without a local Advocate.  In essence, an Advocate who is not  on  the  roll
of Advocates in the High Court can  appear  along  with  a  local  Advocate.
Alternatively, even without fulfilling this requirement, an Advocate who  is
not on the rolls of Advocates in the High  Court  can  move  an  application
before the Court seeking leave to appear without even a local  Advocate  and
in appropriate cases, such a permission can be granted.

In N.K. Bajpai v. Union of India[1], this Court made it clear that right  to
practice can be regulated and is not an absolute right which  is  free  from
restriction or without any  limitation.   Following  observations  from  the
said judgment are pertinent and relevant for the present case:
“24.  A bare reading of these three provisions clearly shows that this is  a
statutory right given to an advocate to practise and an  advocate  alone  is
the person who can practise before the courts,  tribunals,  authorities  and
persons.  But this right is statutorily regulated by two conditions  –  one,
that a person's name should be on  the  State  rolls  and  second,  that  he
should be permitted by the law for the time  being  in  force,  to  practise
before any authority or person.  Where the advocate has a  right  to  appear
before an authority or a person, that right can be denied by a law that  may
be framed by the competent legislature.

Thus, the right to practise is not an absolute  right  which  is  free  from
restrictions  and  is  without  any  limitation.   There  are  persons  like
Mukhtars and others, who  were  earlier  entitled  to  practise  before  the
courts, but the Advocates Act itself took away the right to  practise  which
was available to them prior to its coming into force.  Thus,  the  Advocates
Act placed a complete prohibition  upon  the  right  to  practise  of  those
persons who  were  not  advocates  enrolled  with  the  State  Bar  Council.
Therefore, the right to practise, which is not only a statutory right  under
the provisions of the Advocates Act but would also be  a  fundamental  right
under  Article  19(1)(g)  of  the  Constitution  is  subject  to  reasonable
restrictions.

An argument could be raised that a person who has obtained a degree  of  law
is entitled to practise anywhere in India, his right, as  enshrined  in  the
Constitution and under the Advocates Act cannot be restricted  or  regulated
and also that it is not necessary for him to enrol himself  on  any  of  the
State rolls.   This  argument  would  be  fallacious  in  the  face  of  the
provisions of the Advocates Act as well as the restrictions contemplated  in
Article 19(6) of the Constitution. The legislature is  entitled  to  make  a
law relating to the professional or technical qualifications  necessary  for
carrying on of that profession.

                         xxx         xxx        xxx

As already noticed by us above, the right to practise  law  is  a  statutory
right.  The statutory right itself is restricted one.  It is  controlled  by
the provisions of the Advocates Act, 1961 as well as  the  Rules  framed  by
the Bar Council under that Act.  A statutory right cannot  be  placed  at  a
higher pedestal to  a  fundamental  right.   Even  a  fundamental  right  is
subject to restriction and control.  At  the  cost  of  repetition,  we  may
notice that it is not possible to imagine a right  without  restriction  and
control in the  present  society.  When  the  appellants  were  enrolled  as
advocates as well as when they started practising as advocates, their  right
was subject to the  limitations  under  any  applicable  Act  or  under  the
Constitutional limitations, as the case may be”.


At this juncture, we  may  also  take  note  of  the  rationale  behind  the
impugned Rules which would not only be an answer to the  question  which  we
are addressing at the moment,  namely,  the  Rules  are  in  the  nature  of
regulations/restrictions and not prohibition, it will  even  answer  related
aspect as well viz. the restrictions are reasonable in nature  as  they  are
in public interest.

The administration of justice is  a  sacrosanct  function  of  the  judicial
institutions or the persons entrusted with that onerous  responsibility  and
principle of judicial review has now been declared as a part  of  the  basic
structure of the Constitution. Therefore, if  anything  has  the  effect  of
impairing or hampering the quality of administration of justice  either  due
to lack of knowledge or proper qualification on  the  part  of  the  persons
involved in the process of justice dispensation or they being  not  properly
certified by the Bar Council as provided under the Act and  the  Rules  made
there under, it  will  surely  affect  the  administration  of  justice  and
thereby affecting the rights of litigants who are before the Courts  seeking
justice.  The whole object of the Rules in question is  furtherance  of  the
administration of justice and to  ensure  that  the  advocates  who  can  be
easily located or accountable to the Courts are allowed to  practice  before
the Court.  Therefore, the Rules provide that the  name  of  such  advocates
whose names are not on the roll of the Advocates in the  High  Court  should
appear with a local Advocate of the High Court.  The easy identification  of
the person who appears before the Court when he is the enrolled advocate  of
another Bar Council or is not on the rolls of Advocates of  the  High  Court
is to ensure his presence whenever the cases are listed and to minimise  the
cases being dismissed for default which may result in  serious  consequences
to the litigants  and  multiplicity  and  inordinate  delay  in  proceedings
whether it be a criminal case or civil dispute is the objective  of  Rule  3
or 3A of the Rules.  That objective is achieved  when  he  is  permitted  to
appear along with the local Advocate of the High Court.

In  applying  the  test  of  reasonableness  (which  is  the  most   crucial
consideration), the broad criterion is whether  the  law  strikes  a  proper
balance between social control on  the  one  hand  and  the  rights  of  the
individual on the  other  hand.   The  court  must  take  into  account  the
following aspects:-
(a)   nature of the right infringed;
(b)   underlying purpose of the restriction imposed;
(c)   evils sought to be remedied by the law, its extent and urgency;
(d)   how far the restriction is or is not proportionate to the evil; and
(e)   prevailing conditions at the time.
            The impugned Rules passed the aforesaid test of  reasonableness.
 The respondents have given appropriate justification and  rationale  behind
the Rules viz. to fix accountability on the advocates practicing before  the
High Court.  Such  Rules  are  also  aimed  at  helping  in  regulating  the
functioning of the Court.  It is important for the  orderly  functioning  of
the Allahabad High Court that  Rolls  are  maintained  in  Order  to  effect
service of notices and copies of pleadings  and  ensure  regular  procedural
compliances.  The same will not be possible if proper records  of  Advocates
practicing in the High Court are not maintained  in  the  High  Court.   The
administration of justice will suffer if no person is held  accountable  for
non-compliance  of  office  reports  etc.   There  may  be  occasions   when
Advocates may be called upon  by  the  Court  in  pending  matters  and  the
dispensation of justice will suffer if there is no record of  Advocates  who
do not generally practice in the High  Court,  may  not  attend  matters  in
which they may have filed their vakalatnama before the High  Court.   It  is
imperative for the smooth and effective functioning of the  court  that  the
court is able to fix responsibility on Advocates, which is not  possible  if
Roll of Advocates is  not  maintained  in  the  High  Court.   Moreover,  an
advocate is permitted to file vakalat on behalf of a client even though  his
appearance inside the court is not permitted.  Conduct in court is a  matter
concerning the Court.  But the right to appear  and  conduct  cases  in  the
court is a matter on which the court must and does  have  major  supervisory
and controlling power.  Hence courts cannot  be  and  are  not  divested  of
control or supervision of conduct in court merely  because  it  may  involve
the right of an Advocate.
            We,  thus,  conclude  that  the  Rules  in  question  amount  to
reasonable restrictions which are imposed in public interest.

No doubt,  the  Indian  Advocates  Act,  1961  confers  statutory  right  to
practice under Section 30 which is brought into force only from  15.06.2011.
However, this right is subject to the rule making power of  the  High  Court
under Section 34 of the Act.  Article 225 of the Constitution of India  also
confers jurisdiction and powers in the High Court to  make  rules  of  Court
subject to law made by appropriate Legislature and states that such a  power
of the High Court to make rules of Court shall be the  same  as  immediately
before the commencement of the Constitution.  Before this provision  in  the
Constitution, similar provision existed in the form of Section  223  of  the
Government of India Act, 1935 and before that, it was  Section  106  of  the
Government of India Act, 1915 which vested power in the High Court  to  make
rules for regulating the practice of the Court  as  was  vested  by  Letters
Patent.  It is a known fact that the Allahabad High  Court  was  constituted
under a letters patent issued by her majesty on 17.03.1866.
            Clause 7 of Letters Patent of Allahabad High Court is  extracted
below:
                            The Civil Court Manual Vol. 31 Pg.4
       “7.   Powers  of  High  Court  in  admitting  Advocates,  Vakils  and
Attorneys-

            And we do hereby authorize and empower the said  High  Court  of
Judicature for the North-Western Provinces  to  approve,  admit  and  enroll
such and so many Advocates, Vakils and Attorneys as to the said  High  Court
shall seem meet; and such Advocates, Vakils and Attorneys shall be  and  are
hereby authorized to appear for the suitors, of the said High Court, and  to
plead or to act, or to plead and act, for the  said  suitors,  according  as
the said High Court may by its rules and directions  determine  and  subject
to such rules and directions.”

            A perusal of Clause 7 shows that the High  Court  of  Judicature
for the North-Western provinces (now known  as  Allahabad  High  Court)  was
empowered to “approve, admit and enroll advocates”  and  to  authorize  them
“to appear, to plead or to act, or to plead and  act”  for  the  suitors  in
accordance with the rules and directions.  This  power  of  the  High  Court
continues by virtue of Section 223 of the Government of India Act, 1935  and
Article 225 of the Constitution of India.

That apart, Section 34 of the Act empowers the  High  Court  to  make  Rules
laying down the conditions subject to which an Advocate shall  be  permitted
to practice in the High Court and courts subordinate thereto.  It  reads  as
under:
“34.  Power of High Courts to make rules.—
(1)  The High Court may make rules laying down  the  conditions  subject  to
which an advocate shall be permitted to practise in the High Court  and  the
courts subordinate thereto.

[(1A) The High Court shall make rules for fixing and regulating by  taxation
or otherwise the fees payable as costs by any party in respect of  the  fees
of his adversary’s advocate upon all proceedings in the  High  Court  or  in
any Court subordinate thereto.]

[(2) Without prejudice to the provisions contained in sub-section  (1),  the
High Court at Calcutta may make rules  providing  for  the  holding  of  the
Intermediate and the Final examinations for articled clerks to be passed  by
the persons referred to in section 58AG for the purpose  of  being  admitted
as advocates on the State roll and any other matter connected therewith.]


Section 30 of the Act which confers a right to practice has  been  expressly
made “subject to the provisions of this Act”.  We reproduce  Section  30  of
the Act hereinbelow:
“30.  Right of advocates to practise.—Subject to  provisions  of  this  Act,
every advocate whose name is entered in the [State roll] shall  be  entitled
as of right to  practise  throughout  the  territories  to  which  this  Act
extends,—
(i) in all courts including the Supreme Court;
(ii) before any tribunal or person legally authorised to take evidence; and
(iii) before any other authority or person before whom such advocate  is  by
or under any law for the time being in force entitled to practise.”

            Therefore, Section 30 is also subject to Section  34.   The  Act
does not confer any absolute right to practice.  The right can be  regulated
by the High Courts by prescribing conditions.

From the above  discussion,  it  becomes  clear  that  High  Court  is  duly
empowered to make rules and Rules in question are not  ultra  vires  Section
30 of the Act.  It is more so when power under Section  34  of  the  Act  is
given to the High Courts, which are Constitutional Courts.

We have already pointed out above that the  restriction  stipulated  in  the
impugned Rules is reasonable and in public interest.  It would be  necessary
to clarify at this stage that the  disciplinary  jurisdiction  conferred  on
the Bar Councils under Section 36 of the Act  for  misconduct  committed  by
the advocates stand on a different footing than the powers conferred on  the
High Courts to frame rules to practice before the High Court or  subordinate
Courts.   It  may  be  the  intention  of  the  Parliament  to  confer   the
jurisdiction on the lawyers' body like Bar Councils regarding misconduct  by
advocates to maintain the independence of the Bar.  However,  again  keeping
in mind the administration of justice and regulating the  Court  proceedings
and right to practice and  right  to  appear  before  the  high  Courts  and
Subordinate Courts, power is conferred on the High Courts, to  frame  rules.
If High Court keeping in mind, several relevant factors like the  purity  in
a administration of justice, the interest of the litigant  public  and  easy
availability of the advocate to assist the court for proper adjudication  of
the dispute pending before it or expeditious disposal  of  such  proceedings
or for any other valid or good reasons which High Court considered just  and
proper frames such rules, we find no fault in Rule  3  or  Rule  3A  of  the
Rules.

The aforesaid conclusion of ours flow from  the  dicta  laid  down  by  this
Court in the various judgments and we would like to refer to some  of  these
cases.  In the case of Bar Council of  India  v.  High  Court  of  Kerala[2]
wherein para 38, this Court held as follows:
“38. Holding that the right of appearance in  courts  is  still  within  the
control and jurisdiction of courts, this  Court  noticed:  (SCC  pp.  72-73,
para 34)



“34. … Section 30 of the Advocates Act has not been brought into  force  and
rightly so. Control of conduct in court can only be  within  the  domain  of
courts. Thus Article 145 of the Constitution of India gives to  the  Supreme
Court and Section 34 of the Advocates Act gives to the High Courts power  to
frame  rules  including  rules  regarding  condition  on  which   a   person
(including an advocate) can practise in the  Supreme  Court  and/or  in  the
High Court and courts subordinate thereto. Many courts have framed rules  in
this behalf. Such a rule would be valid and binding  on  all.  Let  the  Bar
take note that unless self-restraint is exercised, courts may  now  have  to
consider framing specific rules  debarring  advocates,  guilty  of  contempt
and/or unprofessional or  unbecoming  conduct,  from  appearing  before  the
courts. Such a rule if framed  would  not  have  anything  to  do  with  the
disciplinary jurisdiction of the Bar Councils. It would  be  concerning  the
dignity and orderly functioning of the courts. The right of the advocate  to
practise envelops a lot of acts to be performed by him in discharge  of  his
professional duties. Apart from appearing in the courts he can be  consulted
by his clients, he can give his legal opinion whenever sought  for,  he  can
draft instruments, pleadings, affidavits or  any  other  documents,  he  can
participate in any conference involving legal discussions, he  can  work  in
any office or firm as a legal officer, he can appear for clients  before  an
arbitrator or arbitrators, etc. Such a rule would have nothing  to  do  with
all the acts done by an advocate during  his  practice.  He  may  even  file
vakalat on behalf of a client even though his appearance  inside  the  court
is not permitted. Conduct in court is a  matter  concerning  the  court  and
hence the Bar Council cannot claim that what should happen inside the  court
could also be regulated by them in exercise of  their  disciplinary  powers.
The right to practise, no doubt, is the genus of which the right  to  appear
and conduct cases in the court may be a specie. But the right to appear  and
conduct cases in the court is a matter on which  the  court  must  and  does
have major supervisory and controlling power. Hence  courts  cannot  be  and
are not divested of control  or  supervision  of  conduct  in  court  merely
because it may involve the right of an advocate. A rule can  stipulate  that
a  person  who  has   committed   contempt   of   court   or   has   behaved
unprofessionally and in an unbecoming manner will  not  have  the  right  to
continue to appear and plead and conduct cases in courts. The  Bar  Councils
cannot overrule such a regulation concerning the orderly  conduct  of  court
proceedings. On the contrary, it will be their duty to see that such a  rule
is strictly abided by. Courts of law are structured in such a design  as  to
evoke respect  and  reverence  to  the  majesty  of  law  and  justice.  The
machinery for dispensation of justice according to law is  operated  by  the
court. Proceedings inside the courts are always expected to  be  held  in  a
dignified and orderly manner. The very sight of an advocate, who  is  guilty
of contempt of court or of unbecoming or  unprofessional  conduct,  standing
in the court would erode the dignity of  the  court  and  even  corrode  its
majesty besides impairing the confidence of the public in  the  efficacy  of
the institution of the courts. The power to frame such rules should  not  be
confused with the right to practise law. While the Bar Council can  exercise
control over the latter, the courts are  in  control  of  the  former.  This
distinction is clearly brought out by the difference in language in  Section
49 of the Advocates Act on the one hand and Article 145 of the  Constitution
of India and Section 34(1) of the Advocates Act on  the  other.  Section  49
merely empowers the Bar  Council  to  frame  rules  laying  down  conditions
subject to which an advocate shall have a right to practise i.e. do all  the
other acts set out above. However, Article 145 of the Constitution of  India
empowers the Supreme Court to make rules for regulating  this  practice  and
procedure of the court including inter alia rules as to  persons  practising
before this Court. Similarly Section 34 of the Advocates Act  empowers  High
Courts to frame rules, inter  alia  to  lay  down  conditions  on  which  an
advocate shall be permitted to  practise  in  courts.  Article  145  of  the
Constitution of India and Section 34 of the Advocates Act clearly show  that
there is no absolute right to an advocate to appear in a court. An  advocate
appears in a court subject to such  conditions  as  are  laid  down  by  the
court. It must be remembered that Section  30  has  not  been  brought  into
force and this also shows that there is no absolute right  to  appear  in  a
court. Even if  Section  30  were  to  be  brought  into  force  control  of
proceedings in court will always remain with the court. Thus even  then  the
right to appear in court will be subject to complying with  conditions  laid
down by  courts  just  as  practice  outside  courts  would  be  subject  to
conditions laid down by the Bar Council of India. There is thus no  conflict
or clash between other provisions of the Advocates Act on the one  hand  and
Section 34 or Article 145 of the Constitution of India on the other.”

We have already referred to the judgment in the case of N.K. Bajpai  wherein
it was held that right to practice as an Advocate is not an  absolute  right
and it was only a statutory right which is controlled by the  provisions  of
the Act.

The principle that the High Court has right to regulate the conduct  of  its
own proceedings can also be found in Pravin C. Shah  v.  K.A.  Mohd.  Ali  &
Anr.[3].  In that case, it was held that the High Court cannot  be  divested
of the control or supervision of the court merely  because  it  may  involve
the right of an advocate.  The High Court has power to formulate  rules  for
regulating proceedings inside the court.  Such power should not be  confused
with the right to practice law.  The court has supervisory  power  over  the
right of an Advocate to appear and conduct cases in the  court.  This  court
also cited with approval the judgment of the Allahabad  High  Court  in  the
case of Prayag  Das v. Civil Judge, Bulandshahr[4], wherein the  High  Court
held that the High Court has power to regulate the appearance  of  Advocates
in courts. The High Court further held that the right  to  practice  in  the
right to appear in courts are not synonymous.  Under Section 34 of the  Act,
the High Court has power to make rules  for  regulating  proceedings  inside
the court.

Same sentiments are echoed in R.K. Anand & Anr.  v.  Registrar,  Delhi  High
Court and Anr.[5] and Ex-Capt. Harish Uppal v. Union of India & Anr.[6].

We, thus, are of the opinion that Rules 3  and  3A  of  the  Allahabad  High
Court Rules, 1952 and perfectly valid, legal and do not  violate  the  right
of the appellant under Article 19(1)(g) of the Constitution of  India.   The
appeal, therefore, fails and is hereby dismissed.  There shall, however,  be
no order as to cost.



                             .............................................J.
                                                                (A.K. SIKRI)



                             .............................................J.
                                                               (N.V. RAMANA)

NEW DELHI;
AUGUST 26, 2016.

-----------------------
[1]   (2012) 4 SCC 653
[2]   (2004) 6 SCC 311
[3]   (2001) 8 SCC 650
[4]   AIR 1974 All. 133
[5]   (2009) 8 SCC 106
[6]   (2003) 2 SCC 45

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