TaxTMI 
TaxTMI 
1952 (10) TMI 32
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.... against being taken to have decided that a proceeding under article 32 would lie after an application under article 226 for the same relief the same facts had been rejected after due enquiry by a High Court. We express no opinion that point. 3. The facts leading to this proceeding are not in dispute and may be briefly stated. The first petitioner is an Advocate of this Court and his name is also the roll of Advocates of the High Court of Calcutta. As an Advocate of the latter Court he is entitled, under the relevant rules there in force, both to act and to plead the Appellate Side but not to act or to appear, unless instructed by an Attorney, the Original Side. 18th July, 1951, he filed in the Registry the Original Side a warrant of authority executed in his favour by the second petitioner to defend the latter in a pending suit. The warrant was returned 27th July, 1951, with the endorsement that it "must be filed by an Attorney of this Court under the High Court Rules and Orders, Original Side, and not by an Advocate". The return was made by an Assistant in charge of Suit Registry Department, who is called as the first respondent to this petition. The second respondent is th....
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....ates who could be authorised by the rules to act as well as to plead in the Supreme Courts, rules were made empowering Advocates only to appear and plead and not to act, while Attorneys were enrolled and authorised to act and not to plead. In the Sudder Courts and the Courts subordinate thereto, pleaders who obtained a certificate from those Courts were allowed both to act and plead. When the Supreme Courts and the Sudder Courts were abolished and their jurisdictions were transferred to High Courts under the statute of 1861, this differentiation in the functions of legal practitioners was continued in the High Courts under the notion, apparently, that the High Court, in the exercise of its Ordinary Original Jurisdiction, was the successor of the Supreme Court, and that, the Appellate Side, it inherited the jurisdiction and powers of the Sudder Courts, with the result that Advocates were allowed only to appear and plead instructed by Attorneys empowered to act the Original Side as in the Supreme Court, while the Appellate Side, they were allowed both to act and plead as in the Sudder Courts. There was also another class of practitioners known as Vakils who were neither allowed to....
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....f the Bar, and it achieved a certain measure of both, eliminating the two grades of practitioners, the Vakils and the Pleaders, by merging them in the class of Advocates who, were "entitled as of right to practice" in the High Courts in which they were enrolled and in any other court in British India, subject to certain exceptions. It also provided for the constitution of Bar Councils for the High Courts with power to regulate the admission of Advocates, to prescribe their qualifications and to inquire into any case of miscouduct that may be referred to them. But the right to practice and the power to make rules were not to limit or in any way affect the unlimited powers of the High Courts at Calcutta and Bombay to make rules allowing or disallowing Advocates to practice their Original Side: (vide section 9 (4) and section 14). While such was the position of Advocates in the courts in what used to be known as British India, it is not a matter of dispute that Advocates practising in the courts of what were known as Indian States were allowed to appear, plead and act behalf of suitors. 9. It will thus be seen that legal practitioners, by whatever name called, practising in all the....
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.... there is nothing in section 2 to warrant the cutting down of that statutory right to pleading only the Original Side of the Calcutta High Court as the respondents seek to do. On the other hand, the respondents contend that the non obstante clause in the first part of the section furnishes the key to the proper interpretation of its scope, and inasmuch as that clause supersedes only those pro-visions of the Bar Councils Act, and of any other law which exclude persons not entered in the roll of Advocates of a High Court from the right to practice in that Court, the enacting clause must be construed as conferring only a right co-extensive with the disability removed by the opening clause; that is to say, the section is designed only to enable Advocates of the Supreme Court who are not enrolled as Advocates of any High Court to practice nevertheless in that High Court. The petitioner, who is already an Advocate of the Calcutta High Court, could derive no additional right from the section in relation to that Court, as he does not fall within the purview of the section. Alternatively, even if the provision is read as conferring Advocates of the Supreme Court the right to practice ....
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.... all the Provinces of Canada the functions of Barristers and Solicitors are united in the same person and the rules of the English Bar do not apply there". In upholding in that case the right of counsel to sue for and recover a quantum meruit in respect of professional services rendered by him, the Judicial Committee remarked: - "Their Lordships entertain serious doubts whether in an English Colony where the common law of England is in force, they (i.e., general considerations of public policy) could have any application to the case of a lawyer who is not a more advocate or pleader and who combines in his own person various functions which are exercised by legal practitioners of every class in England all of whom, the Bar alone excepted, can recover their fees by an action at law." 15. It seems reasonable, therefore, to assume that the practice of law in this country generally involves the exercise of both the functions of acting and pleading, behalf of a litigant party; in other words, the Bar in India, generally speaking, is organised as a single agency. Accordingly, when the Legislature confers upon an Advocate "the right to practice" in a Court, it is legitimate to ....
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....nstance, if an Advocate of the Supreme Court not entered the Roll of the Allahabad High Court desired to practice in the latter Court where there are no Attorneys or Agents, he would find himself in a difficult situation. It was said that a, local Advocate could be engaged to instruct him, acting for the client. Even if it were permissible to substitute a local Advocate for an "Agent" to overcome the disability imposed by Order IV, Rule 11, of the Supreme Court Rules which prohibits an Advocate from appearing "unless he is instructed by an Agent", it would be tantamount to introducing a new type of dual agency where it does not exist at present, an innovation which, we think, could hardly have been contemplated. Such an interpretation would also render the right conferred by the new Act largely illusory in practice. 17. The construction adopted by the learned Judges of the High Court, which relates the word "practice" in section 2 to the High Court in which the Supreme Court Advocate seeks to exercise his right, seems to us to be equally open to objections. In their view, that word as applied to the same Advocate should be understood in a wider or narrower sense in relation to d....
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....nto the word "practice" itself as the necessary implication of its dictionary meaning so as to bring in the exclusion of acting the Original Side as part of its connotation. We find it difficult to appreciate this view. The Advocate of the Supreme Court in all the cases referred to above seeks to practice only one profession, namely, the profession of an Advocate. As such he would be bound to observe the rules of practice of each Court, that is, the prescribed procedure for conducting legal proceedings in the Court concerned; but a rule which denies to him the right to exercise an essential part of his function by insisting a dual agency the Original Side is much more than a rule of practice and the power of making such a rule, unless expressly reserved by the new Act, as it was reserved in section 9 (4) and section 14(3) of the Bar Councils Act, would be repugnant to the right conferred by section 2. In this connection, it may be pertinent to point out that the power of the High Courts to make rules of practice regulating the procedure to be followed in the conduct of proceedings before them and the power to frame rules regulating the admission and conduct of legal practitioner....
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.... deemed to limit or in any way affect the power of the High Court of Judicature at Fort William in Bengal or of the High Court of Judicature at Bombay to make rules determining the persons who shall be entitled respectively to lead and to act in the High Court in the exercise of its original jurisdiction." 21. It is to be noted that by virtue of the last two provisions to which the right of local Advocates is made expressly subject, the High Courts of Calcutta and Bombay have the power to "grant or refuse as they think fit" the application of any person applying to practice in the Original Side of those Courts, and the power to make rules laying down who shall plead and who shall act that side. It is in exercise of these powers that the High Courts have framed the rules, to which reference has been made, cutting down the right of the Advocates of those Courts to practice the Original Side to appearing and pleading only and otherwise imposing restrictions that right, such as, that they shall not appear unless instructed by an Attorney. That is to say, the Advocates of those Courts are not entitled to practice as of right the Original Side. As the powers thus reserved are exerc....
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.... Bar Councils Act was expressed by a Full Bench of the Madras High Court in Powers of Advocates, In re ((1928) I.L.R. 52 Mad. 92), where it was held that a rule made by that Court excluding the Advocates enrolled there from acting the Insolvency Side became invalid and inoperative after the enactment of that Act, and we entirely agree with that decision. The learned Judges below attempted to distinguish that case, as Mr. Chatterjee for the respondents did before us, by observing that because the Bar Councils Act made no distinction between the different jurisdictions of the Madras High Court and the rules of that Court allowed the Advocates to act and plead the Original as well as the Appellate jurisdiction thereof, the learned Judges construed the word "practice" in section 14 to mean both acting and pleading. That is not a correct view of the reasoning employed by the Full Bench. The learned Judges failed to see that such reasoning would indeed lead to the opposite conclusion. As a matter of, fact, there was a rule under which the local Advocates were prevented from acting and they had accordingly not acted in the insolvency jurisdiction of that Court, so that if "practice" in....
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....d when that Act proceeded to empower by section 14 (1) (a) an Advocate enrolled in a High Court to practice as of right in that Court, it took care to make it clear that the right so conferred was subject to the exercise of the power reserved under section 9 (4). But, as pointed out already, it is significant that Parliament, in conferring a similar right under the new Act the Supreme Court Advocates, did not reserve any such overriding power. In the absence of such reservation, the statutory right of a Supreme Court Advocate to plead as well as to act in the High Courts of Calcutta, and Bombay in the exercise of their original jurisdiction cannot be taken away or curtailed by those Courts, and any rules which they may have made in the past purporting to. exclude any Advocate from acting their Original Side, or from appearing and pleading unless he is instructed by an Attorney cannot affect such right. 24. Turning now to the non obstante clause in section 2 of the new Act, which appears, to have furnished the whole basis for the reasoning of the Court below - and the argument before us closely followed that reasoning we -find the learned Judges begin by inquiring what are the....
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....repealed by section 2 of the new, Act but continue in force. We now proceed to examine whether these conclusions are well-founded. 26. Much ado was made an both sides about the comma occurring just before the word "or" in the non obstante clause, the petitioner stressing its importance as showing that the adjectival clause "regulating the conditions etc." does not qualify the words "Indian Bar Councils Act" which are separated by the comma and that, therefore, the whole of that Act is superseded, while learned counsel for the respondents insisted that in construing a statute punctuation marks should be left out of consideration. Nothing much we think, turns the comma, as it seems I grammatically more correct to take the adjectival clause as qualifying "law". Having regard to the words anything contained" and the preposition "in" used after the disjunctive "or", the qualifying clause cannot reach back to the words "Bar Councils Act". But, whichever way we take it, it must be admitted that, in framing the non obstante clause, the draftsman had primarily in, mind those Provisions which stood in the way of an Advocate not enrolled in any particular High Court practising in that Cour....
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....oniously; for, even apart from such clause, a later law abrogates earlier laws clearly inconsistent with it. Posteriores leges priores contrarias abrogant (Broome's Legal Maxims, 10th Edn., p. 347). Here, section 2 entitles every Advocate of the Supreme Court as of right to practice in any High Court in India. The phrase "entitled as of right" has evidently been adopted from the Bar Councils, Act, and we have already indicated our view that; the word "Practice as applied to a legal practitioner in, India includes, in the absence of any limiting or restrictive; context, both the functions of acting and pleading. The phrase "entitled as of right to practice "is an emphatic affirmation of a right to plead, and to act independently, of the will or discretion of any other person. Could it be said that sections 9 (4) and 14 (3) of the Bar Councils Act are consistent with the existence of such a right? As we have seen already, section 9 (4) preserves the powers of the High Courts at Calcutta and Bombay, among other things, "to grant or refuse, as they think fit" the applications of persons to practice in those High Courts in the exercise of their original jurisdiction How could a p....
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....Therefore, it was urged, the rules of the Calcutta and Bombay High Courts, which preclude Advocates of those Courts from acting the Original Side of their jurisdiction or from pleading without the intervention of an Attorney, are binding upon Supreme Court Advocates as well. We see no force in the argument which seems to proceed a misconception. The right of an Advocate to practice, as we have seen, normally Comprises the exercise of his two-fold function' of acting and pleading without the intervention of anybody else. Any rule or condition that prevents him from exercising one of those functions is plainly a cutting down of his right to practice and, affecting as it does the substance of his right, is in its operation, quite unlike the rules and conditions of practice under which all Advocates normally carry their business in courts. No one suggests that a Supreme Court Advocate is, by becoming entitled to practice in the High Courts, freed from all. obligation to conform to the ruler, of practice and regulations as, to costume and Such other matters, according to which the profession of law must be exercised in the various High Courts. There is a vital distinction between....
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....struction which it sought to place upon section 2. Each side relied upon the "statement of objects and reasons" annexed to the Bill in support of its own contentions. Reference was also made to speeches made the floor of the House by members during the debate the Bill. Our attention was also called to the form of the Bill as originally introduced in the House and its amendment by omitting part (a) of the proviso to clause (2) thereof. 31. As regards the speeches made by the members of the House in the course of the debate, this Court has recently held that they are not admissible as extrinsic aids to the interpretation of statutory provisions: The State of Travancore-Cochin & Another v. The Bombay Co. Ltd. etc.([1952] S,C.R. 1112). 32. As regards the propriety of the reference to the statement of objects and reasons, it must be remembered that it seeks only to explain what reasons induced the mover to introduce the Bill in the House and what objects he sought to achieve. But those objects and reasons may or may not correspond to the objective which the majority of members had in view when they passed it into law. The Bill may have undergone radical changes during its passage ....
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.... before us with elaborate fulness by the petitioner No. 1, Mr. Aswini Kumar Ghosh, who appeared in person, as well as by a number of eminent counsel representing the Barristers' and Advocates' Associations in the three principal High Courts in India. Having given their learned arguments the best consideration that I am capable of, I have come to the conclusion that this application cannot succeed. 36. The matter in controversy is a very short one. The petitioner No. I is an Advocate of the Calcutta High Court entitled to practice both its Original and Appellate Sides. This means, that he can both plead and act the Appellate Side of the Court and plead only its Original Side. Mr. Ghosh later got himself enrolled as an Advocate of the Supreme Court and after the passing of the Supreme Court Advocates (Practice in High Courts) Act, 1951, he asserted his right, the strength of the provision of that enactment, to "act" also the Original Side of the Calcutta High Court. He actually filed "a warrant of power and appearance" behalf of the petitioner No. 2 in a suit pending in the Original Side of that Court in which the latter figures 'as the defendant. The warrant was retur....
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....n what exactly is the meaning of the word "practice'.' as used in that section'. 38. The Act is a very short one and consists only of two sections. The first section gives the name and description of the Act which is instituted "The Supreme Court Advocates (Practice in High Courts) Act" and the object, as stated at the, outset before the enacting clause commences, is to "authorise Advocates of the Supreme Court to practice as of right in any High Court". The entire provision of the Act is contained in section 2 which runs thus "Notwithstanding anything contained in the Indian Bar Councils Act, 1926 (XXXVIII of 1926) or in any other law regulating the conditions subject to which a person not entered in the roll of Advocates of a High Court, may be permitted to practice in that High Court every Advocate of the Supreme Court shall be entitled as of right to' practice in any High Court whether or not he is an Advocate of that High Court". 39. Upon this, a proviso is engrafted to the following effect that "nothing in this section shall be deemed to entitle any person merely by reason of his being an Advocate of the Supreme Court to practice in a H....
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....uld not be departed from unless there are adequate grounds for such departure. It is said next that the literal meaning of the word "practice" cannot be out down or controlled in any way by the language of the opening clause in section 2 of the Act; and that clause which may be described as a non-obstante clause is not confined in its operation to removal of the disabling provisions affecting those whose names are not entered as Advocates the roll of a particular High Court, but has the effect of excluding all the provisions of the Bar Councils Act for purposes of this enactment. It is further argued that the words "whether or not he is an Advocate of that High Court" occurring in section 2 unmistakably indicate that the legislature had not in mind the removal of disabilities attaching to outside Advocates merely, but that it intended to confer certain privileges domestic Advocates as well who happened to be enrolled as Advocates of the Supreme Court. All these matters require to be examined carefully. 42. The word "practice" when used with reference to a profession means "to follow, pursue, work at, or exercise such profession". The profession of an Advocate may contemplate ....
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.... section 14 (1) mentioned above have also been used in other parts of the Bar Councils Act, to wit, in sections 4 (2), 5 (1) and 8 (1) of the Act; but the word "practice" in all these provisions does not mean pleading find acting in an unlimited sense. It connotes the same rights and the same limitations which are prescribed in section 14 of the Act. The same expression has been used in section 2 of the Supreme Court Advocates Act apparently in the same sense and with the same implications and it cannot be argued that it connotes an unrestricted right of pleading and acting because the reservations mentioned in section 14 (1) of the Bar Councils Act have not been repeated there. 46. Mr. Ghosh has in this connection drawn our attention to two reported cases, one of which is a pronouncement of the Patna High Court and the other of the Madras High Court. 47. In the Patna case the question &rose as to whether an Advocate or Vakil whose name appeared the roll of any High Court could "act" behalf of his client by presenting an application for review of a judgment in a case which was tried by a court subordinate to the High Court. The question was answered in the affirmative and rel....
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....les which the Supreme Court itself has laid down in this respect, or is his position, when he appears before a High Court, the same as that of an Advocate enrolled in the said court and he has the same rights and disabilities which attach to such persons under its rules? The only other alternative that is or can be suggested and has been put forward behalf of the petitioner is that he is not' fettered by any rules either of the Supreme Court or of the particular High Court in which he appears; and as the extent of his right depends upon the language of the section itself, the legislature by using the word "practice" has conferred upon him the righ of both pleading and acting in any High Court he chooses, irrespective of the rules of practice which obtain in such court. 50. The first view does not appear to me to be tenable. If it is held, that what the section contemplates is that a Supreme Court Advocate in exercising his right of practice in any High Court should be governed by the Supreme Court Rules, the Act itself would be altogether unworkable. It is laid down in Order IV, Rule 12, of the Supreme Court Rules that "no person shall appear as Advocate in any case unless h....
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....hich are binding that court, except to the extent that the rules themselves are invalidated expressly or by necessary implication. If the legislature had expressly stated that an Advocate qualified under section 2 of the Act would have the right of both pleading and acting in any High Court in India or if that was the clear intendment and implication of the language used, any rule conflicting with that provision could certainly have been held to be invalid; but I am unable to say that the use of the word "practice" which has only a general import, by itself, would have that effect. 54. Looked at from this standpoint, the third view indicated above, which has been pressed vehemently behalf of the petitioner, cannot certainly be supported. So long as the rules relating to pleading and acting in particular jurisdictions of specified High Courts are allowed to remain valid and binding, no intention can be imputed to the legislature, without clear words to that effect, of abrogating these rules with regard to the few persons who happen to be enrolled as Advocates of the Supreme Court. Far from achieving uniformity in any sense of the word, such step would lead to serious anomaly and ....
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....ch excludes the operation of certain statutory provisions, and this negative part of the section constitutes, according to the learned Judge, the measure and criterion of the right which the positive part formulates. The first question is, to what extent the provisions of any existing law have been eliminated by the opening clause of section 2 The language of the clause is as follows:- "Notwithstanding anything contained in the Bar Councils Act (XXXVIII of 1926), or in any other law regulating the conditions subject to which a person not entered in the roll of Advocates of a High Court may be permitted to practice in that High Court......................." 57. Mr. Justice Chakravartti is of opinion that this clause purports to remove all those provisions of the Bar Councils Act or of any other law which imposed restrictions upon persons not enrolled as Advocates of a particular court in the matter of practising in that court. The exclusion is to this extent and no further; and consequently all the other provisions contained in the Bar Councils Act or other statutes which lay down the conditions under which an Advocate enrolled in a High Court is entitled to practice in ....
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....e expressions used. I find considerable force in the opinion expressed by Chakravartti J. that in the present case the effect. of the position of the comma or the particular array of, words in the sentence has been completely neutralised I by the use of the word "other" occurring in the phrase "or in any other law". The result is, as the learned Judge has said, that the Bar Councils Act has been posited as an alternative to other laws and both have been subjected to the qualification contained in the qualifying clause. 60. Assuming, however, for argument's sake that Mr. Ghosh is right and that the whole of the Bar Councils Act is eliminated by the opening clause of the section, I do not think that even then it really improves his position. The Bar Councils Act itself does not make any provision relating to the rights of pleading and acting in the Original Side of any High Court. Sections 9(4) and 14(3) of the Act save only the rights of the High Courts of Calcutta and Bombay to make rules in relation thereto; and these rules are made by these courts in the exercise of their powers under the Letters Patent. Section 19(2) of the Bar Councils Act lays down as follows: - ....
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....on its negative side eliminates so far as the Supreme, Court Advocates are concerned, all disabling provisions existing under any law in regard to persons who are not enrolled as Advocates of any particular High Court. the positive Side, the section confers Supreme Court Advocates the statutory privilege of practising as of right, in any High Court in India, no matter whether he is enrolled as an Advocate of that court or not. It is this positive aspect that has been emphasised by the words "whether or not he is an Advocate of that court" which occur at the conclusion of the section. It may not be strictly correct to say that these words are altogether inappropriate, for the section aims at conferring, though indirectly, certain privileges those who are enrolled as Advocates of the particular High Court as well. Section 9 (4) of the Bar Councils Act lays down: - "Nothing in this section or in any other provision of this Act shall be deemed to limit or, in any way affect the powers of the High Courts of Judicature at Fort William in Bengal and at Bombay to prescribe the qualifications to be possessed by persons applying to practice in those High Courts respectively....
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....cial Committee of the Privy Council which lay down that in construing a statute all negotiation previous to the Act or the original form of the bill must be dismissed from consideration. "We cannot interpret the Act" said Lord Halsbury, "by any reference to the bill, nor can we determine its construction by any reference to its original form" (1). It is not permissible to ascertain the meaning of the word used in an Act by reference to the proceedings in the Legislative Council, and the language of a "Minister of the Crown" in proposing a measure in Parliament which eventually becomes law is inadmissible (2). In a, Calcutta case the learned Judges refused to look into the statement of objects and reasons accompanying an enactment as an aid to its construction (3). The (i)Vida Herron V. Rathmins (1802] A.C. 492 at 5o2. (2) Vida Krishna Ayyangar v. Nellaperumal [1920] 47 I.A33; Assam. Railway & Trading Co. Ltd. v. Inland Revenue Commissioners (1935] A.C, 443; Administrator General of Bengal v. Premlal [1895] 12 I.A. 107 (3) Vida Debendra v. Jogendru, A.I.R. 1936 Cal. 593. The judicial opinion on this point is certainly not quite uniform and there are American decisions to the effe....
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.... Supreme Court Advocates the right of practice in the different High Courts in India in the same way as the Advocates enrolled in those, courts are entitled to do, the original proviso (a) purported to cut down that right to a considerable extent. Under this proviso the, Supreme Court Advocates were denied the right of pleading the Original Side of the Calcutta and the Bombay High Courts and they could neither act nor plead the Original Side of the Madras High Court, although they would have those rights under the Bar Councils Act. The dropping of the proviso might mean nothing else than this that this restriction was withdrawn and the rights created by the section without the proviso stood intact. 67. Be that as it may, it is, in my opinion, a most risky thing to attempt to construe the meaning of a word in a statute with the aid of a non existent provision. We do not know the reasons why the legislature deleted this clause and it is not permissible for us to speculate these matters. A reference to the legislative debates or the speeches that were actually delivered in the floor of the House is, in my opinion, inadmissible to ascertain the meaning of the words used in the enact....
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....ian Companies Rules framed by the Calcutta High Court in the matter of a winding up petition regarding a company. That "warrant of appearance" was returned by the Registrar evidently because rule 58 requires a person who intends to appear the hearing of the winding up petition to leave with or sent to the petitioner or to his attorney a notice of such intention signed "by him or by his attorney" and does not authorise the filing of a notice signed by an advocate. The second petitioner is one Sri Jnanendra Nath Chatterjee who is the defendant in Suit No. 2270 of 1951 pending the Original Side of the Calcutta High Court. July 18, 1951, petitioner Jnanendra Nath Chatterjee as defendant in the said Suit No. 2770 of 1951 executed a "warrant of appearance and power" in the said suit in favour of the-petitioner Aswini Kumar Ghosh. The petitioner Aswini Kumar Ghosh as advocate for the petitioner Jnanendra Nath Chatterjee filed the warrant with the Assistant in charge of the Suit Registry Department of the Original Side. This was, clearly done in purported compliance with the provisions of Chapter 8, rule 15, of the Original Side Rules. That rule, however, requires the defendant to enter....
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....he petitioners filed the present petition against the same respondents. The. petition is instituted as an application under articles 22 (1), 32 (1) and (2), 135 and 136 (1) of the Constitution of India. In the prayer portion of the petition, the petitioners ask for directions, orders or appropriate writs the respondents for the enforcement of their fundamental rights guaranteed under articles 19 (1) (g) and 22 (1) of the Constitution, an order declaring the right of the petitioner Aswini Kumar, Ghosh act behalf of his clients the Original Side of all, High Courts in India including Calcutta, an order upholding the right of the petitioner Jnanendra Nath Chatterjee to be defended in the said suit by the petitioner Aswini Kumar Ghosh and other consequential reliefs. There is an alternative prayer asking this Court to treat the petition as an application, under article 136, for special leave to appeal against the judgment and order of, the Special, Bench of the Calcutta High Court dismissing the petitioners application, under article 226 of the Constitution and for condonation of the delay in presenting the present petition. 73. At the hearing before us it has not been seriously sug....
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.... quite clearly apply to and affect all High Courts in India. It is, therefore, necessary to bear in mind the status and position of advocates as they prevail in the different High Courts. The Indian High Courts Act, 1861 (24 & 25 Vic. C. 104) by section I authorised Her Majesty, by Letters Patent, to erect and establish High Courts for the three Presidencies of Bengal, Madras and Bombay. Section 9 of that statute provided that each of the High Courts to be so established should have and exercise civil, criminal and other jurisdiction, original and appellate, as therein mentioned and all such powers and authority for and in relation to the administration of justice in the presidency for which it is established, "as Her Majesty may by such Letters Patent as aforesaid grant and direct." Section 16 of that statute also empowered Her Majesty to establish a High Court in and for any portion of the territories within Her Majesty's dominions in India, not included within the limits of the local jurisdiction of another High Court. Pursuant to this authority High Courts were established by Letters Patent at Fort William in Bengal, Madras and Bombay. Clause 9 of the Letters Patent of e....
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.... all their jurisdictions. Apart from the several Letters Patent High Courts other High Courts, e.g., the High Courts of Assam and Orissa, and the High Courts of Part B States, also have framed rules of their own for admission of advocates and according to those rules the advocates of all these High Courts can "appear, act and plead". The position, therefore, was that, at the date of the Act, all advocates of all High Courts including those of the Appellate Side of Calcutta and Bombay High Courts but excluding only the Original Side advocates of Calcutta and Bombay could "appear, act and plead" in their own High Courts in all jurisdictions but the advocates of the Original Side of those two High Courts could only "appear and plead" the Original Side. 77. Apart from the bar against acting imposed by the High Courts of Calcutta and Bombay their own Original Side advocates, all the High Courts, by their respective rules, prescribed certain conditions subject to which alone an advocate who was not their rolls could "appear and plead" in such High Courts. Chapter I, rule 38, of the Original Side of the Calcutta High Court provides as follows: "An Advocate of any other High Co....
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....s well aware of the bar imposed foreign advocates, i.e., advocates not the roll of a High Court in the matter of their appearing and pleading in that High Court and the fact that eminent advocates of one High Court were not, many occasions in the past, given permission "to appear and plead" in another High Court. The legislature knew that under Order I, rule 2, of the Supreme Court Rules an advocate had been defined as a person entitled "to appear and plead" before the Supreme Court and that Order IV, rule 30, precluded an advocate from acting as agent and an agent as advocate in any circumstances whatsoever. Finally, the legislature was cognisant of the fact that a Supreme Court advocate was a, foreign advocate in all High Courts other than the one, where he was enrolled and as such was not entitled as of right "to appear and plead" in those High Courts. With knowledge of all these facts and circumstances the legislature proceeded to enact this Act and, therefore, the provisions of the Act have to be considered in the light of these prevailing circumstances which undoubtedly form the background' of this enactment and which cannot be overlooked or ignored. 80. Turning now....
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....Indian Bar Councils Act, 1926 (XXXVIII of 1926), or in any other, law regulating the conditions subject to which a person not entered in the roll of Advocates of a High Court may be permitted to practice in that High Court every Advocate. of the Supreme Court shall be entitled as of right to practice in any High Court whether or not he is an Advocate of that High Court. Provided that nothing in this section shall be deemed to entitle any person merely by reason of his being all Advocate of the Supreme Court to practice in a High Court of which he was at any time a Judge, if he had given an undertaking not to practice therein after ceasing to hold office as such Judge." 82. It will be noticed that the main body of the section consists of two parts, namely, a non-obstante clause beginning with the words "Notwithstanding anything" and ending with the words "permitted to practice in that High Court" and a positive part beginning with the words "every Advocate of the Supreme Court" and ending with the words "of that High Court." To clear the ground it will be useful, at the outset, to ascertain the scope and ambit of the non-obstante clause. 83. The controversy this claus....
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....A. 93 at p. zoo). If, however, the rule regarding the rejection of punctuation for the purposes of interpretation is to be regarded as of imperfect obligation and punctuation is to be taken at least as contemporanea expositio, it will nevertheless have to be disregarded if it is contrary to the plain meaning of the statute. If punctuation is without sense or conflicts with the plain meaning of the words, the Court will not allow it to cause a meaning to be placed upon the words which they otherwise would not have. This leads me to the second ground which mainly the High Court rejected the plea of the petitioner Aswini Kumar Ghosh, namely, that the Word "other" in the phrase "any other law" quite clearly connects the Indian Bar Councils Act with other laws as alternatives and subjects both to the qualification contained in the adjectival clause. I find myself in complete agreement with the High Court this point. If the intention wag that the adjectival clause should not qualify the Indian Bar Councils Act, then the use of the word "other" was wholly inapposite and unnecessary. The use of that word unmistakably leads to the conclusion that the adjectival clause also qualifies some....
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.... Courts may be permitted to practice in the High Court". As already stated, a rule has been framed under this section by the Calcutta Bar Council as well as by the Bombay Bar Council. These three provisions are the only provisions of the Indian Bar Councils Act or the rules thereunder which place a bar against an advocate, not the roll of a Hiah Court, from practising in such High Court. It is interesting to note that the non obstante clause in section 2 of the Act we are construing is couched in language which has unmistakably been taken from sections 14 (2) and 15(b). There can be no question that a supersession of the Indian Bar Councils Act will supersede those provisions of that Act and the rules thereunder which "regulate the conditions subject to which advocates of other High Courts may be permitted to practice in the High Court". Apart from this I find nothing in the Indian Bar Councils Act which has any direct bearing section 2 of the Act we are construing or whose supersession is necessary to give effect to it. It is said that the rules of the Calcutta and Bombay High Courts do prescribe the qualifications to be possessed by persona applying to practice in those Courts....
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.... who will act and who will plead or who will act and plead and those rules will prevail their own strength and efficacy, although the rules regulating the conditions subject to which foreign advocates can be permitted to appear and plead will stand abrogated by reason of the non-obstante clause. In the premises, the result of the construction sought to be founded by the petitioner Aswini Kumar, Ghosh the existence of the comma in the non-obstante clause will be precisely the same as it would have been if the comma had not been there and the adjectival clause "regulating the conditions etc." also attached to and qualified the words "Indian Bar Councils Act." In short, there is no escape from the, conclusion that the ambit, scope and effect of the non-obstante clause are, to supersede the Indian Bar Councils Act and any other Act only in so far as they regulate the conditions referred to therein. I again emphasise that the rules of the different High Courts regulated the conditions subject to which a foreign advocate would be permitted "to appear and plead." There was no question of the foreign advocate "acting" in a High Court of which he was not an advocate. The purpose of the n....
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....em do not do the same thing. Thus attorneys "practice" in the Original Sides of the High Courts of Calcutta and Bombay and the agents "practice" in the Supreme Court but we know that under the rules of those Courts the attorneys, and agents only "act". The advocates also, "Practice" but we know that all of them do not perform the same functions. The advocates of all High Courts including those of the Appellate Sides of the Calcutta and Bombay High Courts, under the rules of their respective High Courts, "act and plead" and, as the ambit of the profession of such advocates extends to acting and pleading, the words "to practice" in their application to those advocates undoubtedly mean "to act and plead". The advocates of the Original Sides of those two High Courts can, under the rules, only "plead". the Original Side and the ambit and scope of the profession of these Original Side advocates being limited only to pleading, the words "to practice" used in reference to these advocates must mean "to plead" only. There are thus different species of lawyers, some of whom, e.g., attorneys of the Original Sides of Calcutta and Bombay High Courts and agents of this Court, only "act", some ....
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....h Courts of Judicature at Fort William in Bengal and at Bombay such proportion as the High Court may direct in each case shall be persons who have for such minimum. period as the High Court may determine, been entitled to practice in the High Court in the exercise of its original jurisdiction, and such number as may be fixed by the High Court out of the said proportion shall be barristers of England or Ireland or members of the Faculty of Advocates in Scotland." 91. If we give the words "to practice" their ordinary dictionary meaning, then the sub-section will be quite easy of comprehension but if we say that those words mean "to act and plead" then the sub-section will become meaningless, for those words in that sub-section refer to the practice of the Original Side advocates only who do not and indeed under the rules cannot at all act on the Original side. It is, therefore, clear that the words "to practice" have been used in both sub-sections in their generic meaning which is also their dictionary meaning, namely, "to exercise their profession", although in their application to the different species who are within the sub-sections they mean different professional attribute....
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.... we put the ordinary dictionary meaning the words "to practice", namely, "to exercise his profession", the section will be found to be quite intelligible and workable; but if we take them to mean only "to act and plead" then the Original Side advocates who do not "act" but only "plead" will not, strictly speaking, be within the section and consequently will not be able to avail themselves of the protection of section 14 (1) (a). Can it, for a moment, be said that the section gives protection and security to all advocates other than the Original Side advocates and that the latter are not entitled as of right "to practice", i.e., "to plead", in the High Court of which he is an advocate? That cannot be so. The very fact that the right is subject to the provisions of section 9 (4) and that the rule-making power of the two High Courts is not affected by virtue of section 14 (3) quite clearly show that the Original Side advocates who cannot act the Original Side are intended also to be included in the term advocate used in sub-section (1). If, therefore, this section is to give any security to the Original Side advocates, as it does to the Appellate Side advocates, then we must read t....
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....ama or was instructed by a pleader of the subordinate court. It was held that an advocate of the High Court, unlike a pleader, aid not need to be appointed in writing to act behalf of his client and even when verbally appointed he could under Order III, rule 1, of the Code of Civil Procedure appear, plead and act behalf of his client and, therefore, when section 4 of the Legal Practitioners Act, 1879, provided that every person entered as an advocate or vakil the role of any High Court under the Letters Patent should be entitled to "practice" in all Courts subordinate to such High Court, the word "practice" as applied to an advocate of the Patna High Court meant "appear, plead and act". The ratio of the decision is obvious. The scope and ambit of the Patna High Court advocate's profession covered acting and pleading, and when such an advocate was given the right to practice" in the subordinate court be was authorised to exercise his profession in full, i.e., to act and plead in the subordinate court. In short, the advocate carried the attributes of his profession with him even when he went to exercise his profession in the lower court. This decision is no authority for the p....
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....to limit its meaning" is not supported by any authority and appears, to me to be too wide. Indeed, the learned Judge himself recognised this, for throughout the judgment it was emphasised that the word "practice", when applied to a Madras Advocate, meant "to appear, act and plead". It is clear from, that judgment that, according to the learned' Judge, the words had not that wide meaning in their application to the Original Side Advocates of the Calcutta and Bombay High Courts. In any event, that passage should, in the context,, be limited in its application to the Madras High Court advocates and all advocates of all other High Courts who, by their rule 6, are permitted to act Pand plead, for it cannot possibly have that meaning in relation to an Original Side, advocate who is permittad only to plead. This passage in the Madras decision could not have been intended as an enumeration of the professional activities of an advocate as forming the invariable contents of the words "to practice" or as an enunciation of a fixed meaning of general application. In this country where there exists, as a historical fact, a clear division of legal practitioners into three separate classes,....
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....oner Aswini Kumar Ghosh urges that the words "to practice," in relation to all advocates of all the 20 High Courts, except the Original Side advocates of the Calcutta and Bombay High Courts only, mean "to act and plead" and seeing that this is the meaning applicable to the vast majority of advocates, those words must be given that meaning. Am I to apply the rule of majority in construing a statute? Am I to assume that the Legislature had forgotten or deliberately ignored the hard historical fact that there exists a large body of advocates, of not inconsiderable importance who "practice", that is only "plead" the Original Side of two premier High Courts in India? Or am I to assume that the Legislature intended, by the use of a dubious expression of indefinite import, to swamp one whole class of legal practitioners, namely, the Attorneys of those two High Courts? I find not the slightest indication of such intention anywhere in this Act. the contrary, the title of the Act and the non-obstante clause of section 2 itself run counter to such contention. I have already pointed out that the words "to practice" have been used in the non-obstante clause in the sense of "appearing and pleadi....
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....nse, the saving clauses must have been inserted ex abundanti cautela. Be that as it may, as the High Court's power to make rules under clause 9 extended only to the advocates, vakils and attorneys enrolled by them and as the Indian Bar Councils Act also dealt with advocates enrolled by the High Courts, the insertion of the saving clauses in the last mentioned Act is intelligible. But a saving of the rule-making powers of High Courts over their own advocates etc., is entirely out of place in an Act which is concerned not with High Court advocates but with Supreme Court advocates only The High Courts have no power under clause 9 of the Letters Patent to make any rule to govern the conduct and activities of the Supreme Court advocates and this Act only deals with Supreme Court advocate and confers a new right them. Therefore a saving of the High Courts rule making power over their advocates would have been wholly meaningless and inappropriate, for such saving clause would not have given the High Courts any power to make any rules with respect to the Supreme Court advocates There was, therefore, no necessity or occasion for inserting any saving clause the lines of sections 9 (4) and....
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....ion can be looked at as affording any guidance is to the meaning of the words. It is neither necessary nor profitable to go into the numerous decisions all of which it may be difficult to reconcile but it is quite clear from the decision of this Court in the case of A. E. Gopalan v. The State of Madras() [1950] S.C.R. 88, (1920) 17) that the debates and speeches in the Legislature which, reflect the individual opinion of the speaker cannot be referred to for the purpose of construing the Act as it finally emerged from the Legislature and so the debates must be left out of consideration. 102. The statement of objects and reasons attached to the Bill only depicts the object which the sponsor of the Bill had in mind, but it throws no light the object which the Legislature as a body had in mind when passing the Bill into an Act. If I may borrow and adapt the felicitous language used by my Lord the present Chief Justice in that case those objects and reasons may at best be indicative of the subjective intention of the Law Minister who sponsored the Bill but they could not reflect the inarticulate mental processes lying behind the majority vote which carried the Bill. Nor is it reason....
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....derlying reason why the majority of this Court expressed the view that the Report of the Drafting Committee could be looked at as historical material throwing some light the question of construction of the article 21. That underlying reasoning does not, however, apply to the present case. This Court, consistently with the principles laid down in numerous judicial decisions, some of which I have cited above, held that recourse could not be had to the debates in the Legislature in construing the Act. To keep out the debates which may, in some degree, have disclosed the considerations operating the minds of the vocal section of the Legislature and the intention with which they moved the amendment and then to refer to the text of the original Bill and the fact that some words or clauses thereof do not find a place in the Act as eventually passed in order to ascertain the state of mind of the members of the Legislature who passed the Act will, to my mind, be indicative of a mental process which can hardly be for my learned colleagues who had pronounced upon the admissibility of the Report of the Drafting Committee, I feel pressed to adhere to and abide by the views expressed by them ....
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....hat the object of this Act, as indicated in the full title and the non-obstante clause in section 2 was undoubtedly to remedy this defect. So far as the Supreme Court advocates were concerned all which circumstances are to be taken into consideration in construing an Act as stated in Heydon's case ((1584) 3 Co. Rep. 7b) and finally the legislative practice of using the words "to practice" in their ordinary dictionary meaning, as I have explained already, I find no ambiguity whatever in the operative part of section 2. The meaning and intent of the section appear to me reasonably plain and I do not consider it necessary to have recourse to the original Bill at all to ascertain the meaning and intent of the words used in the section. It is wrong to imagine or create ambiguity and then to call in aid the original Bill and to speculate as to the intention of the Legislature. 105. Again, assuming that -the original Bill has to be looked at in ascertaining the meaning of section 2, I do not derive any assistance from the mere circumstance that clause (a) of the proviso which appeared in the original Bill does not find a place in the Act as it finally emerged from the legislative a....
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....ules defined as a person entitled only "to appear and plead" before the Supreme Court, that under Order IV, rule 11, no person could appear as an advocate unless instructed by an agent and that under Order IV, rule 30, such an advocate could in no circumstances "act" as an agent, In short, the Legislature knew that the scope or ambit of the Supreme Court advocate's profession was only "to appear and plead". With all this knowledge the Legislature enacted section 2 authorising every advocate of the Supreme Court "to practice as of right in any High Court". Applying the dictionary meaning to the word "practice," the section authorises every Supreme Court advocate "to exercise his profession as of right in any High Court". The scope and ambit of the Supreme Court advocate's profession being only "to appear and plead" there can be no escape from the conclusion that the section authorises the Supreme Court advocate only "to appear and plead" in any High Court. The reasoning is the same as that adopted or involved in the Patna case referred to above. An advocate of the Patna High Court was, under its rules, entitled "to appear, act and plead" in that High Court. When section 4....
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....he Chief Justice. Surely, nobody has ever suggested that such a foreign advocate must carry with him an instructing advocate or attorney of his own court who is competent to act in order to instruct him when he appears and pleads in the Calcutta High Court. He is instructed by an attorney of the Original Side of the Calcutta High Court without any difficulty. Same remarks apply when an Original Side advocate of Calcutta goes to appear and plead the Original Side of Bombay under Ch. I, rule 6, of the Bombay rules, for surely such an advocate does not carry a Calcutta attorney with him but is quite satisfactorily instructed by a Bombay attorney. An Original Side advocate of the Calcutta or Bombay High Court who cannot appear the Original Side unless instructed by an attorney can and frequently does appear and plead the Appellate Side the instruction of an advocate of the Appellate Side who being entitled to act can instruct the Original Side advocate to appear and plead. If we adopt this construction, the Act becomes workable, but if we adopt the construction suggested by the petitioner, then the Supreme Court advocates practising in High Courts by virtue of the Act will become fr....
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....pt a construction which will not give rise to practical inconvenience. 109. It is pointed out that while this construction may bring about a perfect approximation between the non obstante clause and the operative part of section 2 by entitling only foreign Supreme Court advocates "to appear and plead" in any High Court as of right,, it runs counter to the concluding words of the operative part of section 2, namely, "whether or not he is an Advocate of that High Court", for, it is urged, those words clearly indicate that the section purports to confer a Supreme Court advocate the right to practice not only in a High Court of which he is not an advocate, but also to give him some right in relation to his own High Court. The Court below has held that the words "whether or not" are not quite apposite and that what was meant was that a right was given to every Supreme Court advocate "to practice" in any High Court even if he was not an advocate of that High Court. In other words, the Act itself gives a right to the Supreme Court advocate to practice as of right in any High Court and that being so it was immaterial to consider whether he was an advocate of a particular High Court or n....
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....llate Side advocate of the Calcutta and Bombay High Courts in relation to his own High Court it does not necessarily follow that the words "to practice" must be given such a wide meaning as would also cover acting, for if the words "to practice" are read as extending only to appearing and pleading, even then the Appellate Side advocates of the Calcutta and Bombay High Courts would get some additional right in their own High Courts in that they become entitled by virtue of their position as Supreme Court advocates "to appear and plead" the Original Side without having to take steps under the respective rules of those High Courts to entitle them to appear and plead the Original Side. In this view of the matter also the concluding words "whether or not etc." cannot affect the construction put by me the operative part of the section. 110. Even if I am wrong in adopting the foregoing line of reasoning, the petitioner will yet have to meet an alternative construction which has commended itself to the learned Judges of the High Court and my learned brother Mukherjea, and which I am also prepared to accept as a cogent alternative. The Act authorises every advocate of the Supreme Court a....
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.... as the obligations of an advocate of that, Court. In other words, the Act proprio vigore makes him a person entitled to practice in that Court and as such amenable to and governed by all the rules applicable to and regulating the practice of persons entitled 'to practice in that Court, except, of course, such of the rules as are contrary to, i.e., destructive of this new statutory right and which must, therefore, as regards him, be deemed to be inoperative. Surely the Supreme Court advocate cannot practice in vacuo. To accede to the contention of the petitioner is to say that a body of professional men, namely, the Supreme Court advocates, have been let loose "to practice", i.e., to "act and plead" in all High Courts in all their jurisdictions untrammeled by any rules of practice - a proposition which, in my opinion, has, only to be stated to be rejected. It is fraught with grave dangers and, at any rate, will inevitably lead to practical inconvenience and to no end of utter confusion. If that view were accepted the Supreme Court advocate will be entitled to walk in and walk out of the High Court in any costume that his fancy may choose. He may throw to the winds the rules ....
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....his very concession at once gives away the whole case of the petitioners. As I have already stated clause 9 of the Letters Patent empowers the High Courts to approve, admit and enrol advocates, vakils and attorneys and such advocates, vakils and attorneys -I emphasise the word "such" - are authorised to appear in the High Courts and to plead or to act or to do both according to the rules made by the High Courts. The High Courts rule-making power as to enrolment of advocates, vakils and attorneys and their respective functions and powers is thus quite clearly confined to advocates, vakils and attorneys admitted and enrolled by them and does not and cannot extend to Supreme Court advocates who are not their rolls. Section 119 of the Code of Civil Procedure excludes the application of the rules of practice relating to advocates and pleaders from Original Side of High Courts unless adopted by them by rules framed under the Letters Patent which, as already stated, governs only their own advocates. The Supreme Court of India, under article 145, can only make rules for regulating generally the practice and procedure of the Supreme Court including rules as to the persons practising befo....
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.... must, therefore, be rejected. 112. In is next said that this alternative construction the rights of a Supreme Court advocate will vary from High Court to High Court and that will not be consistent with the policy of uniformity underlying the Act. In the first place it is an assumption, without any warrant, that the Act was out to achieve perfect symmetry and uniformity of the kind which we may consider desirable. Secondly, no serious inconvenience will follow if the rights of a Supreme Court advocate vary from High Court to High Court. The status and rights of advocates of different High Courts do vary under their respective rules and such variation has existed of or long time without any inconvenience. This Act does not at all purport to eliminate those differences amongst the advocates of the different High Courts which will yet continue. The construction sought to be put the section by the petitioner Aswini Kumar Ghosh will, therefore, only create fresh differences by bringing into being a new variety of practitioners who will have yet different rights in all the High Courts. On the other hand, the construction suggested above will cause the least possible inconvenience a....