Allahabad High Court local advocate engagement Rules 3 3A not unconstitutional but valid. They are not ultra vires Section 30 of the Advocates Act 1961 – Supreme Court
ABCAUS Case Law Citation:
999 2016 (08) SC
Important Case Laws/judgments cited:
Bar Council of India v. High Court of Kerala (2004) 6 SCC 311
Pravin C. Shah v. K.A. Mohd. Ali & Anr (2001) 8 SCC 650
Prayag Das v. Civil Judge, Bulandshahr AIR 1974 All. 133
R.K. Anand & Anr. v. Registrar, Delhi High Court and Anr. (2009) 8 SCC 106
Ex-Capt. Harish Uppal v. Union of India & Anr. 6 (2003) 2 SCC 45
Brief Facts of the Case:
The appellant advocate, had filed a writ petition in the Allahabad High Court but the Registry refused to accept his petition as he was not enrolled with the Bar Council of U.P. and he had not fulfilled the requirement of the requirements of Rule 3 and Rule 3A of Chapter XXIV of the Allahabad High Court Rules, 1952 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 said rules which was dismissed by by the High Court by judgment dated 28.04.2015.
Aggrieved by the aforesaid judgment, the appellant filed a civil appeal before the Supreme Court.
Appellant’s challenge to the aforesaid Rules was 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 and and right to practice which is also a fundamental right guaranteed under Article 19(1)(g) of the Constitution of India. He 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.
As per said Rule 3, an Advocate who is not on the Roll of Advocate or the Bar Council of the State of U.P. 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 (in other words, ‘local Advocate’). As per Rule 3A, appearance of an Advocate in the High Court at Allahabad or Lucknow inasmuch as an Lawyer/Advocate who is not on the Roll of Advocates for Allahabad cases at Allahabad and for Lucknow cases at Lucknow is not 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. However, he can still be allowed to appear after obtaining the leave of the Court.
The appellant relied on the judgment in Anju Mishra and Ors. v. The High Court of Judicature at Patna and Ors. rendered on 17.07.2015 by the Full Bench of the Patna High Court and pleaded that the said High Court had declared similar Rules enacted by the High Court of Patna as unconstitutional and ultra vires Section 30 of the Advocates Act, 1961.
Observations made bu the Supreme Court:
The Court observed that said Rules 3 and 3A are regulatory provisions by nature and do not impose a prohibition on practice of law. The Court pointed out that an advocate who is not on the roll of Advocates in the High Court can appear along with a local Advocate. Alternatively, 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.
The Supreme Court referred to its judgment in N.K. Bajpai v. Union of India which made clear that right to practice could be regulated and was not an absolute right free from restriction or without any limitation.
The Apex Court clarified that the whole object of the said 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 so that his presence is ensured on the listing of the case to minimise the cases being dismissed for default.
The Court also pointed out that for the orderly functioning of the Allahabad High Court it is important 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.
It was also pointed out that 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. Therefore, 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.
The Court also opined that the said Rules are also in conformity with the test of reasonableness which is the most crucial consideration and is based on the criterion whether the law strikes a proper balance between social control on the one hand and the rights of the individual on the other hand.
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.
Section 34 of the Act empowers the High Court to make Rules laying down the conditions subject to which an Lawyer shall be permitted to practice in the High Court and courts subordinate thereto. Section 30 of the Act which confers a right to practice has been expressly made “subject to the provisions of this Act”. 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.
Held:
1 High Court is duly empowered to make rules and Rules in question are not ultra vires Section 30 of the Advocates Act 1961.
2. The Rules 3 and 3A of the Allahabad High Court Rules, 1952 are valid, legal and do not violate the right of the appellant under Article 19(1)(g) of the Constitution of India.
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