SLCU 20 Petitioner
Semi Finalist Memorial at 7th National Moot Court Competition organised by School of Law, Christ University, Bangalore f...
MEMORIAL ON BEHALF OF THE PETITIONER TEAM CODE- SLCU_20 7th NATIONAL MOOT COURT COMPETITION, 2016 SCHOOL OF LAW, CHRIST UNIVERSITY, BANGALORE
Before the Hon’ble Supreme Court In the matter of
The Secretary General, Forum for Ethics in Legal Profession (FELP) Versus Union of India and the Registrar General of the High Court of Dakshin Pradesh
Written Submission on behalf of the Petitioner,
Counsel for the Petitioner
Page 1 of 22
MEMORIAL ON BEHALF OF THE PETITIONER TABLE OF CONTENTS Contents
Pg. No. 3 4-5 6 7 8 9 10-20 21
List of Abbreviation List of Authorities Statement of Jurisdiction Statement of Facts Issues Raised Summary of Arguments Arguments Advanced Prayer
LIST OF ABREVIATIONS AIR
All India Reporter Page 2 of 22
MEMORIAL ON BEHALF OF THE PETITIONER Ed Hon’ble Anr. Ors FELP Vol. SC No PIL Id UOI CJ Pg./p ¶ Ltd. Note SCC v.
Edition Honourable Another Others Forum for Ethics in Legal Profession Volume Supreme Court Number Public Interest Litigation Ibid Union of India Chief Justice Page Paragraph Limited Footnote Supreme Court Cases Versus
INDEX OF AUTHORITIES STATUTES
The Constitution of India, 1950 The Advocates Act, 1961 CASES REFERRED
Prayag Das v. Civil Judge Bulandshahr, AIR 1974 All 133 Pravin C. Shah v. K. A. Mohd. Ali,AIR 2001 SC 304 Page 3 of 22
MEMORIAL ON BEHALF OF THE PETITIONER 3. 4. 5. 6. 7. 8.
Shashi Kant Upadhyay Advocate v. High Court of Judicature at Allahabad,2015 R. K Anand v. Registrar, Delhi High Court, (2009) 8 SCC 106 Rakesh Kumar v. The High Court of Judicature at Patna, 2012 Narendra Kumar & others v. Union of India & others, 1960 AIR 430 Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118 Peerless General Finance and Investment Company Ltd. v. Reserve Bank of India,
9. 10. 11. 12.
AIR 1992 SC 1033 B.P Sharma v. Union of India, AIR 2003 SC 3863 Supreme Court Bar Association v. Union Of India, AIR 1998 SC 1895 N. K Bajpai v. Union of India, AIR 2012 SC 653 Anuj Mishra v. The High Court of Judicature at Patna, AIR 2015 Pat 179 (FB)
BOOKS REFERRED & REPORTS
Durga Das Basu, Introduction to the Constitution of India (22nd ed., 2016) Prof. M.P Jain, Indian Constitutional Law (7th ed., 2016) Sanjiva Row &Akshay Sapre, The Advocates Act, 1961 (9th ed., 2016) Henry Campbell Black, Black’s Law Dictionary (6th ed.) 75th Law Commission Report of India, 1978 LEGAL DATABASES REFERRED
1. 2. 3. 4. 5.
Manupatra Online Resources, http://www.manupatra.com LexisNexis Academica, http://www.lexisnexis.com/academica. SCC Online, http://www.scconline.co.in. Oxford Dictionary, http://www.oxforddictionaries.com Supreme Court of India, http://supremecourtofindia.nic.in LEXICONS
1. Aiyar Ramanathan P , Advanced Law Lexicon, (3rd ed., 2005) 2. Garner Bryana, Black‟s Law Dictionary,(7th ed.,1999)
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MEMORIAL ON BEHALF OF THE PETITIONER
STATEMENT OF JURISDICTION The petitioners have approached this Hon’ble Court under Article 32 of the Constitution of India.
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MEMORIAL ON BEHALF OF THE PETITIONER
STATEMENT OF FACTS 1. The concept of Dharma has provided the rationale wherein every individual can enjoy a life of quality, adhering to the noble institutions and professions, pursuing a higher standard of accountability. 2. In India, professions were not regulated by anybody, whether statutory or otherwise, because of the trust the society reposed in them. The society relied upon ‘regulation by self’ of professions and felt that regulation by professions peers was the best way to regulate professions. 3. In Dakshin Pradesh, a state in the Union of India, the professional ethics were zealously adhered to and it has the legacy of contributing great legal luminaries. 4. The Advocates Act was enacted in 1961and contains Section 34 (1), empowering the High Court to make rules for the conditions subject to which an Advocate shall practise in the Court. Even Article 145 of the Constitution of India, empowers the Supreme Court to make rules regulating the practise and procedure of the court.
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MEMORIAL ON BEHALF OF THE PETITIONER 5. Owing to the conduct of certain members of the Bar, the High Court of Dakshin Pradesh has framed rules according to which, it shall have power to debar any Advocate who is not found in proper conduct. 6. The rules were notified on 1 st August, 2016 and thereafter a PIL was filed by the Secretary of Forum for Ethics in Legal Profession (FELP) against the Union of India and the Registrar General of the High Court. 7. The PIL contends that the Section 34 of the Advocates Act, 1961 is unconstitutional and the rules framed thereunder are unreasonable restrictions on the fundamental rights of the Advocates to appear before the Courts and also regulate their profession. 8. Also, the PIL submits that Section 34 suffers from the vice of unbridled delegation of power.
ISSUES RAISED ISSUE I – WHETHER
ADVOCATES ACT, 1961
ISSUE II – WHETHER UNDER
THE RULES FRAMED BY THE
OF THE ACT IMPOSE UNREASONABLE RESTRICTIONS ON THE
FUNDAMENTAL RIGHT OF THE ADVOCATES?
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MEMORIAL ON BEHALF OF THE PETITIONER
SUMMARY OF ARGUMENTS ISSUE I - WHETHER
ADVOCATES ACT, 1961
Section 34 of the Advocates Act, 1961 is unconstitutional in nature as it empowers the High Court to frame rules, laying down the conditions subject to which an advocate can practise in the court. However, the right to practise of an advocate lies exclusively in the domain of the Bar Council as has been pronounced by the courts in various precedents. It is also contrary to the fundamental rights of an advocate to practise which has been enshrined under Article 19 (1) (g) read with Section 30 of the Advocates Act, 1961 as has been illustrated in N.K Bajpai v. Union of India1. The 75th Report of Law Commission of India opined that the disciplinary jurisdiction lies exclusively with the Bar Council.
1 AIR 2012 SC 653 Page 8 of 22
MEMORIAL ON BEHALF OF THE PETITIONER ISSUE II – WHETHER UNDER
THE RULES FRAMED BY THE
OF THE ACT IMPOSE UNREASONABLE RESTRICTIONS ON THE
FUNDAMENTAL RIGHT OF THE ADVOCATES?
The rules framed are unreasonable restriction on the fundamental rights of the advocates. In a number of cases, it has been reiterated that the High Court doesn’t possess the power to take away an advocates’ right to practise. These rules have been framed arbitrarily and hence, they are violative of Article 19 (1) (g). The Section 34 of the act does not imply that the High Court has the power to frame rules regarding the misconduct and debarment of the advocate. Furthermore, the rules that have been framed are unreasonable restrictions on the Article 19 (1) (g) of the Constitution of India. The Supreme Court has construed that any restriction must pass the test of public interest. The rules framed do not exhibit any manifest benefit to the general public. These rules essentially give sweeping powers to the courts and are excessive in nature. They are open to varied interpretation and hence can be misused against the advocates. Thus, the rules framed are unreasonable in nature.
ARGUMENTS ADVANCED I.
WHETHER SECTION 34
ADVOCATES ACT, 1961
It is the most humble submission of the petitioner that the Section 34 of the Advocates Act, 1961 is unconstitutional in nature as it is open to misuse and misinterpretation by the High Courts to encroach upon the disciplinary jurisdiction of the Bar Council. Article 19 (1) (g) of the Constitution read with Section 30 of the said act provides the advocates with a fundamental right to practise, as has been held in the case of N. K Bajpai2. Section 34 of the Advocates Act, 1961 may be used by the High Courts to infringe upon this fundamental right. It is thus contended that the Section 34 is unconstitutional in nature.
2 Supra note 1 Page 9 of 22
MEMORIAL ON BEHALF OF THE PETITIONER The council most respectfully refers to the report of the Law Commission of India of the year 1978, wherefore stating that, ‘the Law Commission of India had received the reference received from the Government of India, Ministry of Law, Justice and company affairs, Department of legal affairs in regard to the disciplinary jurisdiction of the advocates under the Advocates Act, 1961’. The purport of this report deals with the question that whether the disciplinary jurisdiction of the advocates which had been transferred to the Bar Councils, be restored to the High Courts. The report clearly implies that the disciplinary jurisdiction over the advocates lies with the Bar Council and it relies on Section 35 of the Advocates Act, 1961. The report concludes stating that a change in the situation is uncalled for. It has taken the example of medical practitioners and charted accountants who are governed and regulated by their respective central bodies. It has been further stated that unless authority is conferred on a representative body like the elected members of the Bar, the representative body cannot serve its true purpose. In this fashion, the Law Commission has argued that the Bar Council should retain the disciplinary jurisdiction over the advocates. It is therefore submitted that it is essential to analyse the history of Advocates Act, 1961 to comprehend the present situation of the disciplinary jurisdiction.
HISTORY OF ADVOCATE ACT, 1961 (75TH LAW COMMISSION REPORT)
“Before the passing of the Advocates Act of 1961, the law on the subject was to be found principally in two enactments. The Legal Practitioners Act, 1879 empowered a High Court to make rules governing the admission and discipline of pleaders who practised in the courts subordinate to it and before revenue officers and tribunals within its territorial jurisdiction. Under that act, the High Court could suspend or dismiss a pleader for various types of misconducts. The Act of 1879 was concerned with pleaders. The Indian Bar Council Act, 1926 gave to the advocates, who were entitled to practise in the High Court, a measure of autonomy not enjoyed by the pleaders. The Bar Council constituted under the act was a body corporate composed of the Advocate General of the state, four members nominated by the High Court and ten members elected by the advocates from among themselves. Soon after independence, a distinguished committee was entrusted with the work of reporting on the need for an ‘All India Bar’. The committee gave its report in 1953. It recommended, inter alia, the grant of complete autonomy to the Bar3.” 3 75th Law Commission report, 1978 Page 10 of 22
MEMORIAL ON BEHALF OF THE PETITIONER The council for the petitioner puts forward the observations of that committee so as to emphasise the need for the need of autonomy which reads as follows: “The medical men have their general medical council under the Indian Medical Council Act, 1933.So have the Chartered Accountants under the Chartered Accountants Act, 1949. It is a truism that responsibility thrown upon a person stimulates his sense of responsibility. Unless responsibility is conferred on the representative body, elected by the members of the Bar, the establishment of an ‘All India Bar’ will be meaningless. If it is desirable as the committee thinks it is that the National Bar of India should be a strong an independent body capable of influencing and leading public opinion there should be some competent authority deriving its jurisdiction and power from the Bar itself and not subservient to any external authority, howsoever eminent that might be. The risk of the Bar Councils being swayed by external influence or unworthy considerations is not however as un-provided for as is apprehended.” “The brief historical survey shows that the trend of legislation in India has been gradually towards greater autonomy in the field of disciplinary proceedings against members of the legal profession. Prima facie, it would be a retrograde step if this tread is reversed and disciplinary jurisdiction is sought to be restored to the High Courts.” It also most humbly submitted that it becomes clear that, the Law Commission through its 75th Report was inclined towards providing the Bar Council with the autonomy to regulate the disciplinary proceedings against the legal professionals. According to it, the restoring of disciplinary jurisdiction to the High Court would be a regressive approach. In the present case, the High Court of Dakshin Pradesh has framed rules governing the conduct of the advocates which essentially relates to the disciplinary jurisdiction of the Bar Council. In framing these rules the High Court has taken the shelter under Section 34 of the Advocates Act, 1961. In framing these rules the High Court has acted contrary to the opinion of the Law Commission and the accepted position on the disciplinary jurisdiction that the Law Commission has illustrated through its report. Hence, Section 34 is open to misuse by the High Courts’ as it is through this section that the High Courts’ encroach upon the disciplinary jurisdiction of the Bar Council. It is thus contended that Section 34 is being used in contravention to the powers that have entrusted to the Bar Council under the Section 35 of the said act. Additionally, the council for the petitioner most humbly contends that in the 75 th Law Commission Report of India, it has been suggested that disciplinary jurisdiction should not be Page 11 of 22
MEMORIAL ON BEHALF OF THE PETITIONER restored to the High Court. It has further said “the Judges of the High Court would generally be reluctant to be associated with the disciplinary committee of the State Bar council, because appeal against the orders of the State Disciplinary Committee would lie to the Disciplinary Committee of the Bar Council of India. The question of association of the judges of the supreme court with the disciplinary committee of the Bar Council of India does not arise, because appeal from the order of that disciplinary committee lies with to Supreme Court.” This clearly illustrates the opinion of the Law Commission of India which is in favour of the disciplinary committee of the State Bar Council. It finds it prudent to assign disciplinary jurisdiction to the disciplinary committee and explains that it would be inappropriate for the judiciary to encroach upon the jurisdiction of the disciplinary committee. It is submitted that the situation is not reconciled as there is no clear verdict answering whether the court in contempt proceedings can take up the role of the Bar Council and debar an advocate. In contempt proceedings, the most suitable course that can be adopted is that if the court is prima facie of the opinion that the contemptuous act compliant of, deserves the punishment of debarring the advocate, then the matter can be referred to the concerned Bar Council. To dwell upon this aspect and pass reasoned order after affording a fair trial to the advocate. Section 35 of the said act, uses the words ‘whereon received of a complaint or otherwise....’ Thus, the Bar Council will have jurisdiction to deal with the issue as the referral of the dispute can fall in the category of ‘otherwise’. Since under section 35 of the act, referring the matter to the disciplinary committee is to be the satisfaction of the Bar Council, an observation can always be made by the court that the Bar Council shall be at liberty to take an independent decision, based upon the material on record, and shall only be influenced by the order of the court in referring the matter to the Bar Council4. The council further contends that, the Law Commission in its 75th report has opined that “the present law is contained in the Advocates Act, 1961 chapter 5, which deals with the conduct of the Advocate including disciplinary proceedings for misconduct. Briefly, the scheme is as follows. Where, on receipt of a complaint or otherwise a State Bar Council has reason to belief that any Advocate on its role has been guilty of professional or other misconduct, it shall refer the case for disposal to its Disciplinary Committee. The Disciplinary Committee of a State Bar Council, after giving the advocate concerned and advocate general an opportunity of being heard, may make any of the following orders:- may make any of the following orders, namely:4 Sanjiva Row &Akshay Sapre, The Advocates Act, 1961 (9th ed., 2016) Page 12 of 22
MEMORIAL ON BEHALF OF THE PETITIONER a) Dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council direct that the proceedings be filed; b) Reprimand the Advocate c) Suspend the Advocate from practise for such period as it may deem fit d) Remove the name of the Advocate from the State roll of the Advocates5” This position was adopted by the Law Commission of India while explaining the present law dealing with the misconducts of the advocates. This opinion has been made by the Law Commission in the context of the Advocates Act of 1961. It has clearly relied upon Section 35 of the Advocates Act, 1961 while dealing the misconduct cases. This report has adopted the view that the High Courts’ do not possess the power to hold disciplinary proceedings and has directed this power towards the Bar Council. It is thus most humbly submitted that the rules framed by the High Court are arbitrary in nature and excessive in their implications. This is clearly a misuse of the powers granted under section 34 of the act. They are contrary to the judicial pronouncements. Section 34 provides a pathway for blatant misuse of authority that has been entrusted to the High Court which essentially requires to be struck down. The purpose of disciplining advocates can be achieved through the regulation of the Bar Council and no separate legislation governing the conduct of the Advocates is required. It is therefore most respectfully submitted that the Section 34 of the Advocates Act, 1961 is constitutionally invalid as it defeats the purpose of the legislature to entrust upon the Bar Council such powers as concerning to the disciplinary proceedings of the advocates. In furtherance to the contention, the council pleads that in reference to Section 34 of the Advocates Act, 1961 that allows the High Court and the subordinate courts to make rules, thereby laying down the conditions subject to the right to practise of an advocate, should not be of an arbitrary and excessive nature like that of suspension of the right of an advocate to practise as a professional. This appears to be in contraction with Section 30 of the Advocates act, 1961. Section 30 provides the advocate with the right to practise. Hence any rules under section 34 which arbitrarily prevent an advocate from practising violate section 30. In N.K Bajpai6 the Supreme Court has interpreted Section 30 as a fundamental right of an advocate 5 Supra note 3 6 Supra note 1 Page 13 of 22
MEMORIAL ON BEHALF OF THE PETITIONER to practise. Furthermore, in Article 19 (1) (g) freedom to practise any profession has been protected. When section 34 provides the high court to make rules regarding the right to practise of an advocate, the section appears to be in confrontation with the fundamental right guaranteed under Article 19 (1) (g). The unconstitutionality of Section 34 rests upon its contradiction of the fundamental right accorded to an advocate preserving his right to profession. Article 145 of the Constitution specifically confers upon the Supreme Court, the power to frame rules for regulating the practise and procedure of the court, including rules as to persons before the Supreme Court. No such power has been conferred on the High Courts’ by the Constitution and hence by necessary implications such a power has been excluded of the jurisdiction of the High Court. The Constitution does not empower the High Court to frame the rules regarding the right to practise of an advocate as it has done in the case of Supreme Court through Article 145. It is thus submitted that Section 34 has no constitutional backing and as a result of which arbitrary rules cannot be framed under the auspices of Section 34 of the Advocates Act, 1961.
PRECEDENTS IN RELATION TO SECTION 34-
The council humbly contends that the precedents in relation to the rules framed under Section 34 by various High Courts, the courts have differentiated between the right to practise and the right to appear before a court. The courts have held that right to practise can be regulated by the Bar Council and the right to appear before the courts may be regulated by the High Courts. However Section 34 of the Advocates Act, 1961 empowers the High Courts to lay down the conditions subject to which an advocate can practise in the court of law. This is clearly in contradiction to the judicial pronouncements. Hence, it is imperative to the question the constitutional validity of Section 34. A division bench of this court considered the provisions in Section 30 and 34 in Prayag Das v. Civil Judge Bulandshahr 7 and held as follows“The High Court has a power to regulate the appearance of advocates in the courts. The right to practise and the right to appear in courts are not synonymous. An advocate may carry on chamber practise or even practise in court in various other ways, for e.g. drafting and filing of Pleading and Vakalatnama for performing those acts. For that purpose his physical appearance in the court may not at all be necessary. For the purpose of regulating his appearance in the court the High Court should be the appropriate authority to make rule 7 AIR 1974 All 133 Page 14 of 22
MEMORIAL ON BEHALF OF THE PETITIONER and in proper construction of the section 34(1) of the Advocates Act. It must be inferred that the High Court has the power to make rule for regulating the appearance of the Advocates, and proceedings inside the court. Obviously the High Court is the only appropriate authority to be entrusted with this responsibility. However, so far as the basic qualification of an advocate and entitling him to practise without physically appearing in the court or disentitling him from doing so is concerned, the determination of such conditions must remain within the exposure province of the Bar Council.” The council humbly contends that even the court has stated in Pravin C Shah v. K.A. Mohd. Ali8: “The right to practise, no doubt, is a genus of which the right to appear and conduct cases in the court may be a specie.” Also, in Shashi Kant Upadhyay Advocate v. High Court of Judicature at Allahabad 9 the court held: “there’s no violation of the fundamental right to practise the profession, law guaranteed, under the article 19(1) (g) of the Constitution of India. The Advocates Act, 1961 regulates the right to practise and the rules which have been framed by the Hon’ble High Court are in pursuance of an express conferment of such power of the Parliament under section 34 of the act of 1961. ” The petitioner most humbly submits that these judgements, that the Courts have opined that there is a difference between the right to practise and the right to appear before the court. Whereas the latter aspect is concerned the High Court can make rules but only the bar council can regulate the former aspect. This has been the position of the courts in cases cited above. In contrast to this, section 34 of the advocates Act, 1961 grants power to the High Courts to make rules, laying down the conditions subject to which an advocate shall be permitted to practise. This is clearly inconsistent with the position of the court wherein the High Courts’ only have the right to regulate the appearance of the advocates before it. Section 34 is not in consonance with the judicial pronouncements differentiating between the right to practise and the right to appear before the court. The council brings forth explaining that the Section 34 of the Advocates Act, 1961 empowers the High Courts to make rules subject to which the advocates shall be permitted to practise in 8 AIR 2001 SC 304 9 Shashi Kant Upadhyay Advocate v. High Court of Judicature at Allahabad, AIR 2015 Page 15 of 22
MEMORIAL ON BEHALF OF THE PETITIONER the High Courts and in the Courts Subordinate thereto, where a full bench of the Patna High Court held this to be regulatory in nature. It has acknowledged that conferment of right to practise is in the sole domain of the Bar Council. Regulatory measures provided under this section cannot be employed to negate the very right of practise 10. This means that section 34 of the act must be viewed in a restricted manner, of permitting the physical appearance of the advocates and not his general right to practise. Also, in the famous case of Prayag Das11, the High Court held that the right to practise could be taken away by the Bar Council only. But the right to practise and appeal before the court are not synonymous in nature. The council for the petitioner submits that the Supreme Court has held that, in so far as punishment for misconduct is concerned, it is the exclusive privilege of the bar council of India and under the section 38 of the act, the Supreme Court has only appellate Jurisdiction and it has no original jurisdiction to punish a lawyer by way of suspension of his license or debarring him for any period12. Furthermore, the Constitution Bench Judgement in Supreme Court Bar Association v. Union of India13 enunciated that the power of disciplinary action is vested in the Bar Council. The Supreme Court reviewed its own order holding that the power to debar an advocate from practising is exclusively vested in the concerned State Bar Councils. The Constitution Bench Judgement recognized the exclusive privilege of the Bar Councils in matters relating to the discipline of lawyers. The petitioner most humbly submits that it may be mentioned that in the Judgment of Prayag Das14 the Supreme Court observed that while an advocate cannot practise in a court till he is purged of his contempt, still he can do chamber work etc. It is humbly submitted that if under 10 Anuj Mishra v. The High Court of Judicature at Patna, AIR 2015 Pat 179 (FB) 11 Supra note 7 12 Praveen C Shah v. K.A Mohd Ali, AIR 2001 SC 304, (2001) 8 SCC 650 13 AIR 1998 SC 1895 14 Supra note 7 Page 16 of 22
MEMORIAL ON BEHALF OF THE PETITIONER the power to regulate the conduct of a lawyer in a court, if it is conceded that is prevented from practising in court, it directly trenches on the power of the Bar Council under Section 35 of the act. It is also contended that the right to prevent a lawyer from practising in the court is a matter relating to disciplinary jurisdiction which is in the exclusive domain of the Bar Council. The view of the court that stopping a lawyer from appearing before the court doesn’t bar him from chamber work is inconsistent because mere camber work without court appearance is not a function of a lawyer and to say that a lawyer can give opinions but cannot practise is too bitter a pill to be swallowed15. Interestingly, even in the case of R K Anand v. Registrar, Delhi High Court 16, it was held by the Supreme Court that extreme steps of debarring an advocate from appearing before the court should arise very rarely and only as a measure of last resort in cases where the wrong doer advocate does not at all appear to be genuinely contrite and remorseful for his act or conduct, but on the contrary shows a tendency to repeat or perpetuate the wrong acts. II.
THE RULES FRAMED BY THE
OF THE ACT IMPOSE UNREASONABLE RESTRICTIONS ON THE
FUNDAMENTAL RIGHT OF THE ADVOCATES?
The petitioner most respectfully submits that the rules framed by the High Court of Dakshin Pradesh under the Section 34 of the Advocates Act, 1961 are inconsistent and it imposes unreasonable restrictions on the fundamental right of the advocates.
POWER TO MAKE RULES
It is humbly submitted by the council before this Hon’ble Court that, in the case of Rakesh Kumar v. The High Court of Judicature at Patna17, it was held that the High court does not possess the power to take away an Advocate’s right to practise in courts. The power can be exercised by the Bar council which may also frame rules under section 49(a) of the Advocates Act. For the purpose of regulating his appearance in court the high court should be the appropriate authority to make rules and on a proper construction of Section 34(1) of the 15 Supra note 4 16 (2009) 8 SCC 106 17 Rakesh Kumar v. The High Court of Judicature at Patna, AIR 2012 Page 17 of 22
MEMORIAL ON BEHALF OF THE PETITIONER Advocates Act must be inferred that the high court has the power to makes rules for regulating the appearance of the advocates and the proceedings inside the courts. The High Court does have the power to frame rules under Section 34 of the act, but in such a manner that the right to practise is not taken away. Hence the rules framed by the Patna High court did not satisfy the test of law and are in conflict with article 19(1) (g) of the constitution of India and Section 30 of the act, apart from being unreason vable, oppressive and discriminatory and were accordingly set aside. The petitioner therefore pleads that the rules are very subjective in nature and are open to varied interpretations which can lead to a situation where the delivery of justice is questionable. Also, in regard to the Section 34 of the Advocates Act, 1961 which empowers the High Courts to make rules thereby laying down conditions subject to which an advocate shall be permitted to practise in the High Court and in the subordinate courts, the sub clause (1A) of the said section reads as “The High Court shall make rules for fixing and regulating by taxation or otherwise the fees payable as costs by any party in respect to the fees of his adversary’s advocate upon all proceedings in the High Court or in any Court subordinate thereto”. The petitioners most humbly contend that the High Court of Dakshin Pradesh framing rules that guide the conduct of the advocates is inappropriate. The contention that the Advocates Act of 1961 empowers the High Courts to frame rules and that the rules that have been framed in relation to the said provision, is a total abuse of power and is violative in nature. It is nowhere in Section 34 of the Advocates Act, 1960 mentioned that the High Courts are entrusted with such regulatory powers guiding the conduct of the advocates and debarring them in case of non adherence of the set conditions by the advocates.
VIOLATION OF FUNDAMENTAL RIGHTS UNDER ARTICLE 19 (1) (g)
It is most humbly submitted that the rules that have been framed by the High Court under the section 34 of the Advocates Act, 1961 are inconsistent with Article 19 (1) (g) in the Constitution of India wherein the Article 19 (1) (g) guarantees to its citizen, right to practise any profession, or to carry on any occupation, trade or business. These rules in an arbitrary fashion violated the fundamental right of advocates to practise, his/her profession.
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MEMORIAL ON BEHALF OF THE PETITIONER Under Rule 2118 the court has prescribed that ‘An advocate would be debarred if certain condtions laid down by the high court are met. Here, the word debar shall be construed to mean that an advocate cannot appear before the High Court once s/he has been debarred under the said provisions. This shall hamper the right of an advocate to practise which amounts to infringement of the fundamental right.’ It has been the view of the Supreme Court that restrictions may even amount to prohibition in a given case if the mischief to be remedied warrants to total prohibition19. The council contends that the court has reiterated the right to practise of an advocate granted under Section 30 of the Advocates Act, 1961 as a fundamental right which was confirmed in N K Bajpai20. Thus it is submitted by the petitioners that, as right to practise is seen to be a fundamental right, any violation through excessive or arbitrary rules would amount to infringement of the fundamental right. The rules that have been framed are very broad in nature and can be interpreted in a subjective manner. These can be misused to penalise an advocate without a just and reasonable cause. In accordance with Rule 21, an advocate can be debarred from appearing before the courts either permanently or for such a period which the court may deem fit. This might be construed as giving the judiciary expansive powers thereby emphasising a much wider scope which would possibility result in an abuse of justice. The petitioners humbly refer to the case of Narendra Kumar & others v. The Union of India & others21, wherein the Supreme Court construed the term restriction to include prohibition and the rule that reasonableness of such restriction is to be considered in the background of the facts and circumstances under which the order was made, taking into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm caused to individual citizen by the proposed remedy, to be beneficial effect, reasonably expected to result to the general public. Even though total prohibition upon carrying on one’s profession can be imposed by way of regulatory measure but for doing so such prohibition must pass 18 ¶1 Page 2 of Factsheet 19 Peerless General Finance and Investment Company Ltd. v. Reserve Bank of India, AIR 1992 SC 1033 20 (2012) 4 SCC 653 21 1960 AIR 430 Page 19 of 22
MEMORIAL ON BEHALF OF THE PETITIONER through a stringent test of public interest 22. The rules framed by the High Court exhibit no manifest public interest. They are prohibitory in nature and impose restriction upon the advocates. In view of the Supreme Court as presented in the case of B.P Sharma v. Union of India23 total prohibition on one’s profession should pass the test of public interest. In the present case, this condition is not met and public interest is not served. On the contrary, the public at large would be at the losing end if their advocates are debarred. Moreover under Rule 24, an interim order can be passed by the High Court thereby debarring an advocate. Thus, these rules fail to pass the stringent test of public interest as laid down in B.P Sharma24 by this court. The council for the petitioners most humbly submit that as early as in 1951, in Chintaman Rao25, the Supreme Court laid down a test for reasonable restriction wherein the court opined that “the phase reasonable restriction connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interest of the public. The word ‘reasonable’ implies intelligent care and deliberation that is the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right, cannot be said to contain the
quality of reasonableness
and unless it strikes a proper balance between the freedom guaranteed in Article 19 (1) (g) and the social control permitted in Clause 6 of Article 19, it must be held to be wanting in that quality. The rules grant the power to debar an advocate to High Court and the Subordinate Courts if he engages in the misconducts which is enlisted under rule 21. It is therefore most respectfully contended that the set provisions are clearly excessive in nature as they grant extraordinary powers to the courts against the Advocates without creating any checks and balances in case of misuse of the said provisions. These rules in effect gives sweeping powers to the Courts without adhering to the test of reasonableness as laid down in Chintaman Rao26. The meaning of the word reasonable is construed to be one which signifies intelligent care and deliberation. The rules that have been framed do not take into account as 22 B. P Sharma v. Union of India, AIR 2003 SC 3863 23 Ibid 24 Id 25 Chinatman Rao v. State of Madhya Pradesh, AIR 1951 SC 118 Page 20 of 22
MEMORIAL ON BEHALF OF THE PETITIONER its nature regard of being deliberative in nature. Furthermore, there has been no intelligent care taken, which is manifest in the framing of the arbitrary rules. Therefore, the petitioner humbly contends that the sweeping powers to debar an advocate, is in violation of Article 19 (1) (g). This being a fundamental right and its infringement brings the petitioner to this court for appropriate remedies under the Article 32 of the Constitution of India.
PRAYER Wherefore, in the light of the questions raised, arguments advanced and authorities cited, it is most humbly prayed and implored before the Hon’ble Supreme Court of India that it may be pleased to hold, adjudge declare and Pass an order that Section 34 of the Advocates Act, 1961 is unconstitutional Also, Pass an order that the rules framed under Section 34 of the Advocates Act, 1961 impose unreasonable restriction upon fundamental right of the Advocates and that the said rules should be struck down; And, Also, pass further orders as the Hon’ble Supreme Court may deem fit and proper in the facts and circumstances of the case.
26 Id Page 21 of 22
MEMORIAL ON BEHALF OF THE PETITIONER All of which is most respectfully submitted. (Counsel for Petitioner)
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