You are on page 1of 22

MEMORIAL ON BEHALF OF THE PETITIONER

TEAM CODE- SLCU_20


7th NATIONAL MOOT COURT COMPETITION, 2016
SCHOOL OF LAW, CHRIST UNIVERSITY, BANGALORE

Before the Honble 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
Honble
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

1.
2.

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, Blacks 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, Blacks Law Dictionary,(7th ed.,1999)

Page 4 of 22

MEMORIAL ON BEHALF OF THE PETITIONER

STATEMENT OF JURISDICTION
The petitioners have approached this Honble Court under Article 32 of the Constitution of
India.

Page 5 of 22

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.

Page 6 of 22

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

THE

SECTION 34

OF

THE

ADVOCATES ACT, 1961

IS

CONSTITUTIONALLY VALID?

ISSUE II WHETHER
UNDER

SECTION 34

THE RULES FRAMED BY THE

HIGH COURT

OF

DAKSHIN PRADESH

OF THE ACT IMPOSE UNREASONABLE RESTRICTIONS ON THE

FUNDAMENTAL RIGHT OF THE ADVOCATES?

Page 7 of 22

MEMORIAL ON BEHALF OF THE PETITIONER

SUMMARY OF ARGUMENTS
ISSUE I - WHETHER

THE

SECTION 34

OF

THE

ADVOCATES ACT, 1961

IS

CONSTITUTIONALLY VALID?

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

SECTION 34

THE RULES FRAMED BY THE

HIGH COURT

OF

DAKSHIN PRADESH

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 doesnt 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

OF THE

ADVOCATES ACT, 1961

IS CONSTITUTIONALLY

VALID?

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
followsThe 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: theres 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 Honble 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 doesnt
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.

WHETHER
UNDER

THE RULES FRAMED BY THE

SECTION 34

HIGH COURT

OF

DAKSHIN PRADESH

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 Honble 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 Advocates 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
adversarys 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.

Page 18 of 22

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 ones 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 ones 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 Honble 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 Honble 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)

Page 22 of 22