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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 & ORS.

.....RESPONDENT(S)

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.

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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.

(ii) 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.

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(iii) 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.

(iv) 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.

3. 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

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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.

4. 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.

5. 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

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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.   

6. 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

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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.   

7. 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

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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

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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.   

8. 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.

9. We have given due consideration to the respective submissions.

10. 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.   

11. 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

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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.   

12. 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

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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.   

13. In N.K. Bajpai v. Union of India1, 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.

25. 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

1 (2012) 4 SCC 653

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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.

26. 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

59. 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”.

14. 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

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related aspect as well viz. the restrictions are reasonable in nature as

they are in public interest.

15. 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

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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.   

16. 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

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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.

17. No  doubt,  the  Indian  Advocates  Act,  1961  confers  statutory  right  to

practice  under  Section  30  which  is  brought  into  force  only  from

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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.”

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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.

18. 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

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purpose of  being admitted as advocates on the State roll and any other matter connected therewith.]  

19. 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.

20. 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.   

21. 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

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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.

22. 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

Kerala2 wherein para 38, this Court held as follows:

2 (2004) 6 SCC 311

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“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

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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

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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.”

23. 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.   

24. 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, Bulandshahr4,

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.  3 (2001) 8 SCC 650 4 AIR 1974 All. 133

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25. 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.

26. 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.

5 (2009) 8 SCC 106 6 (2003) 2 SCC 45

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