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MEMORIAL ON BEHALF OF THE RESPONDENT

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 Respondent,


Counsel for the Respondent

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MEMORIAL ON BEHALF OF THE RESPONDENT


TABLE OF CONTENTS
Contents

Pg. No.
3
4-5
6
7
8
9
10-16
17

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


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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.

Prayag Das v. Civil Judge Bulandshahr, AIR 1974 All 133


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MEMORIAL ON BEHALF OF THE RESPONDENT


2.
3.
4.
5.
6.
7.
8.

Pravin C. Shah v. K. A. Mohd. Ali, AIR 2001 SC 304


Shashi Kant Upadhyay Advocate v. High Court of Judicature at Allahabad,2015
R. K Anand v. Registrar, Delhi High Court, (2009) 8 SCC 106
Sivani v. High Court of Maharastra, AIR 1995 SC 1770
Bar Council of India v. High Court of Kerala, AIR 2004 SC 2227
Mahipal Singh Rana v. State of Uttar Pradesh, AIR 2016 SC 3302
Peerless General Finance and Investment Company Ltd. v. Reserve Bank of India,

9.
10.
11.
12.
13.

AIR 1992 SC 1033


Krishnan Kakkanth v. Government of Kerala, AIR 1997 SC 128
Jamshed Ansari v. High Cout of Judicature at Allahabad,2016
Harish Uppal v. Union of India, (2003) 2 SCC 45
Abhay Prakash Sahay Lalan v. High Court of Judicature at Patna, AIR 1998 Pat 75
N. K Bajpai v. Union of India, AIR 2012 SC 653

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

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

Aiyar Ramanathan P , Advanced Law Lexicon, (3rd ed., 2005)

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

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

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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.
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.
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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?

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SUMMARY OF ARGUMENTS
ISSUE I - WHETHER

THE

SECTION 34

OF

THE

ADVOCATES ACT, 1961

IS

CONSTITUTIONALLY VALID?

It is most humbly submitted that the Section 34 of the Advocates Act, 1961 is constitutionally
valid as a number of judicial pronouncements have been made in favour of the High Courts
framing rules under Section 34. In the case of R.K Anand v. Registrar, Delhi High Court 1, the
Supreme Court directed the High Court to frame rules to limit the misconduct of the
advocates. This direction of the Supreme Court itself implies that Section 34 of the said act
has a constitutional basis. Further, it has also been held that right to practise is a genus of
which right to appear and conduct cases in the court might be specie. The courts have opined
that under Section 34 of the said act, the High Court has the power to frame rules in relation
to the right to appear before the courts of the advocates. This has been done in the present
case where the High Courts of Dakshin Pradesh has framed rules to debar an advocate only
from that court. Thus, it is contended that section 34 has a strong constitutional basis.

1 (2009) 8 SCC 106


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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?

It is most respectfully submitted that the rules framed by the High Court of Dakshin Pradesh
under Section 34 of the Advocates Act, 1961 doesnt impose any unreasonable restriction on
any fundamental right. It has been considered that right to practise of an advocate is a
fundamental right but no right is absolute in nature and is subject to reasonable restrictions
under Article 19 (6). The restrictions imposed are not excessive in nature and shall be in the
interest of the general public. It will work in the direction of preserving good conduct in the
High Courts. Section 34 of said act empowers the High Court to frame rules laying down the
conditions subject to which an advocate shall practise in the court. In this manner the rules
have been framed consistent to the legislative decree. Similar powers have also been given
under Article 145 of the Constitution to the Supreme Court. Hence, the provisions of Section
34 are not contrary to the Constitutional provisions.

ARGUMENTS ADVANCED
I.

WHETHER THE SECTION 34 OF THE ADVOCATES ACT, 1961 IS CONSTITUTIONALLY


VALID?

It is most humbly submitted that the Advocates Act, 1961 in its Section 34 empowers the
High Courts to frame rules, permitting an advocate to practise in the respective High Court
and the Courts subordinate thereto. Section 34 of the Advocates Act, 1961 reads as 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
adversarys 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 58 AG for
the purpose of being admitted as advocates on the State roll and any other matter connected
therewith.]
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It is also argued before this Honble court that the provisions in Section 30 and 34 of the
Advocates Act, 1961 was held by a division bench in Prayag Das v. Civil Judge
Bulandshahr2 and was further 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 and
in proper construction of the Section 34(1) of the Advocates Act, 1961. 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, 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.
Emphatically, the provisions of Section 34 and its relation with Section 30 was considered in
a judgement of the Supreme Court i.e. in Pravin C Shah v. K.A. Mohd. Ali 3. The Supreme
Court herein noted that the right of an Advocate to practise envelopes several acts to be
performed by him in discharge of professional duties since apart from appearing in the court,
an advocate can be consulted by his clients, would give legal opinion, draft instruments,
pleadings, affidavits or any other documents among other things. The Supreme Court held
that the power to formulate rules for regulating the proceedings would be distinct from the
practise of law. While the Bar Council controls the practise of law, the high court has to be in
control of the regulation of its own proceedings. These principles were reiterated in the
subsequent decision of the constituent bench of the Supreme Court in Ex. Capt. Harish
Uppal v. Union of India4 and in Pravin C Shah v. K.A. Mohd. Ali 5 the court even held that:

2 AIR 1974 All 133


3 AIR 2001 SC 304
4 (2003) 2 SCC 45
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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.
Additionally, in the case of Abhay Prakash Sahay Lalan v. High Court of Judicature at
Patna6, it has been held that under section 34 (1) of the act, the High Court has the power to
frame rules, laying down the conditions subject to which an advocate can practise in the High
Court and in the courts subordinate thereto 7. This finding of the court clearly empowers the
High Court to make frame rules as it deems necessary. The judicial pronouncements have
favoured the discretion of the High Court to formulate rules in order to regulate the
proceedings of the courts in a desirable manner. As has been shown earlier, the precedents
have invariably distinguished between the right to practise and the right to appear before the
court. It is the sole prerogative of the High Court to frame rules governing the conduct of
advocates inside the court. The initiative by the High Court of Dakshin Pradesh to penalise an
advocate for misconduct is has been embarked upon the directions of the Supreme Court in
the case of R K Anand8. Thus, the constitutionality of Section 34 is beyond questioning as the
Supreme Court has itself recognized the set of powers contained in Section 34 and directed
the High Court to utilise them in an appropriate manner.
It is most humbly submitted that the increase in the frequency of court boycotts, lawyers
strikes, bundhs and also in the disruptions of the court proceedings led to the framing of such
rules9. A similar concern was held in the case of Mahipal Singh Rana v. State of Uttar
Pradesh10, where the court observed that Legal profession being the most important
component of the justice delivery system, it must continue to perform its significant role and
regulatory mechanism and should not be seen to be wanting in taking prompt action against
any malpractice. We have noticed the inaction of the Bar Council of Uttar Pradesh as well as
5 Supra note 3
6 AIR 1998 Pat 75
7 3 Page 1 of Factsheet
8 Supra note 1
9 1 Page 2 of Factsheet
10 AIR 2016 SC 3302
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the Bar council of India in spite of the direction of the High Court and in spite of notice to the
Bar Council of India by this court. Thus, there appears to be an urgent need to review the
provisions of the Advocates Act, 1961 dealing with regulatory mechanism for the legal
profession and other incidental issues in consultation with all concerned.
This observation of the court lends a strong basis to the constitutional validity of Section 34
of the Advocates Act, 1961. The judgment refers to the manner in which there is inaction on
the part of the Bar Council in relation to the complaints against the advocates. Similarly, in
the case of R. K Anand11, while giving directions to the High Courts the Supreme Court
articulated that Section 34 of the Advocates Act, 1961 grants power to the High Courts to
frame rules. In this way the Supreme Court impliedly upheld the constitutionality of Section
34. It is also very necessary that the power of Section 34 prevails so that the inaction of the
Bar Councils can be checked.
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?

It is pertinent to point out that the High Court has framed rules adhering to the directions of
the Supreme Court in the R K Anand v. Registrar, Delhi High Court12. Paragraph 147 of this
judgment of this court, reads In order to avoid such controversies in the future all the High
Courts that have so far not framed rules under Section 34 of the Advocates Act, 1961 are
directed to frame the rules without any further delay. It is earnestly hoped that all the High
Court shall frame the rules within four months from today.
Also, paragraph 146 the judgement reads as Ideally every High Court should have rules
framed under section 34 of the act, I order to meet with such eventualities but even in the
absence of the role, the High Court cannot be held to be helpless against such threats. In a
matter as fundamental and grave as preserving the purity of Judicial Proceedings, the High
Court would be free to exercise the powers vested in it under Section 34 of the act
notwithstanding the fact that rules prescribing the manner of exercise of power have not been
framed.
11 Supra note 1
12 Id
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Also, the council humbly pleads that in the case of Bar Council of India v. High Court of
Kerala13, the High Court had framed Rule 11 whereby stating No advocate who has been
found guilty of contempt of court shall be permitted to appear, act or plead in any court
unless he has purged himself of the contempt. The court found the contention to be
misplaced, that rule 11 is violative of Article 19 (1) (g) of the Constitution of India. The court
also held that the High Court has the power to regulate the contempt proceedings. Hence, it is
clear enough that not only the Section 34 is constitutional in nature but it grants powers to the
High Courts to frame rules thereby regulating the appearance of the advocates in the High
Courts and in the courts subordinate thereto.
The rules have been framed by the High Court when it was felt by the High Court that the
regulation by self on the part of the profession as visualised under the advocates act had
failed14. The rules were framed to ensure that the nobility of the profession is maintained. The
rules are in the interest of the general public at large. The right to practise of the advocates
became a fundamental right only on 15th June, 2011 when Section 30 of the Advocates Act,
1961 came into operation. It has only been recently, in 2012, that the Supreme Court in the
case of N K Bajpai v. Union of India15, has recognized the right to practise, not only as a
statutory right under provisions of the advocates act but also as a fundamental right under
Article 19 (1) (g) of the Constitution. This has been confirmed as a fundamental right by the
Supreme Court but no right can be absolute in nature. Consequently, even the right to practise
finds itself subject to the provisions of Article 19 (6) of the Constitution of India. These
provisions deal with reasonable restrictions. The rules framed by the High Court must be
viewed as reasonable restrictions imposed on the rights of the Advocates in the interest of
protecting the professional standards of the legal profession. The restrictions are not
excessive in nature and shall be in the interest of the general public. The framing of rules of
the High Court is in consonance with the power of the Supreme Court under Article 145 of
the Constitution to make rules for regulating the practise and procedure of the court including

13 AIR 2004 SC 2227


14 1 Page 2 of Factsheet
15 AIR 2012 SC 653
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rules as to the persons practising before the court. Furthermore, these rules are pursuant to the
directions of the Supreme Court given during the R K Anand16 case.
Also, in regard to Rule 2117which empowers the High Court to debar an Advocate, it is
submitted that debarment has a very limited scope. The Blacks Law Dictionary defines
debarment as any exclusion or preclusion that prevents having or doing something. This
definition may be interpreted to signify that an advocate is excluded from appearing before
the court. In this context the power to debar is mainly intended to restrict an advocate from
appearing before a court. It does not infringe upon the right to practise of an Advocate and
only seeks to regulate the proceedings of the court. The right to appear before the court is not
a fundamental right and hence the High Court of Dakshin Pradesh has the power under
section 34 of the Advocates act, 1961 to impose reasonable restrictions. The contention that
the rules violate the fundamental rights to practise is baseless. In a similar case of Bar
Council of India v. High Court of Kerala,18 the rule 11 framed by the High Court stated that
if an advocate is punished for contempt then unless the contempt is purged, he is not entitled
to practise. This rule was held to be within the Constitutional framework by the court. Thus,
they upheld the validity of Rule 11 framed by the High Court of Kerala. The rule framed by
the High Court of Dakshin Pradesh is analogous to the rule 11 of the High Court of Kerala. It
is humbly submitted that there appears no justification to invalidate the rules as they are
within the bounds of judicial precedents.
In the instant matter it is essential to note that in Shashi Kant Upadahyay Advocate v. High
Court of Judicature at Allahabad19 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 High Courts are in pursuance of an express conferment of such power of
the Parliament under section 34 of the act of 1961.

16 Supra note 1
17 2 Page 2 of Factsheet
18 Supra note 11
19 Shashi Kant Upadahyay Advocate v. High Court of Judicature at Allahabad, AIR 2015
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In Article 32 of the Indian Constitution of India, it has been enshrined that violation of a
fundamental right is necessary to approach this court. It is then humbly submitted that in case
of Peerless General Finance & Investment Company Ltd. v. Reserve Bank of India 20, it was
held by the Honble Court that, a restriction can be totally prohibitive if the mischief to be
remedied warrants complete prohibition. The rules that have been prescribed by the Honble
High Court of Dakshin Pradesh are reasonable restrictions and not in violation of any
fundamental rights. Article 19 (6), of the India Constitution talks about reasonable restrictions
that can be imposed on a fundamental right. Hence, the arguments of the petitioner are not
substantive on any grounds.
The council most humbly pleads that in the case of Krishnan Kakkanth v. Government of
Kerala21, the State High Court held that The reasonableness of restriction is to be determined
in an objective manner and from the stand point of the interest of the general public and not
from the stand point of the interest of the persons upon whom the restrictions are imposed or
upon abstract considerations. A restriction cannot be said to be unreasonable merely because
in a given case, it operates harshly... In determining the infringement of the right guaranteed
under Article 19 (1) (g), the nature of the right alleged to have been infringed, the underling
purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied
thereby, the disproportion of the imposition, the prevailing condition at the time, enter into
judicial verdict.
Interestingly, in Sivani22, the Supreme Court has laid down the criterion to evaluate the
reasonableness of restriction under Article 19 (6). The must take into account whether the law
has taken proper balance between social control, on one hand, and the right of an individual,
on the other. The court has to take into account such factors as nature of the right enshrined,
underline purpose of the restriction imposed, evils sought to be remedied by law, its extent
and urgency, how far the restriction is or is not proportionate to the evil and the prevailing
condition at the time. The court cannot proceed on any abstract or general notion of what is
reasonable. The court cannot judge reasonableness from the point of view of one person or a
class of persons on whom the restrictions may be imposed.
20 AIR 1992 SC 1033
21 AIR 1997 SC 128
22 Sivani v. State of Maharastra, AIR 1995 SC 1770 at 1774
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Thus, the rules framed by the High Court may not only be perceived in regard to the
advocates concerned. But, other considerations as elaborately discussed in Sivan, must be
taken into account. The reasonableness of the rules must be seen in relation to the
implications which it shall have on the society at large, needs to be considered.
In Jamshed Ansari v. High Court of Judicature at Allahabad 23 has held that right of an
Advocate to appear in cases is a matter on which the court must and does have major
supervisory and controlling power and it cannot be and are not divested of control or
supervision of conduct in court merely because it involves the right of an Advocate. It also
held that the 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 frame rues. It was also the
opinion of the court that keeping in mind the administration of justice and regulating the
court proceedings and right to practise and right to appear before the Honble High Courts
and the Subordinate Courts, power is conferred on the Honble High Courts, to frame rules.
Further, the Honble High Court keeping in mind, several relevant factors like the purity of
administration of justice, the interest of the litigant public and easy availability of the
Advocates 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 the
High Court may consider, may consider to frame rules.

23 Judis.nic.in/supremecourt/imgst.aspx?filename=43894 as retrieved on 5 th September, 2016 at


11:30 AM
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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, 1961has a strong constitutional
basis;
Also,
Pass an order that the rules framed under Section 34 of the Advocates Act, 1961do
not impose any unreasonable restriction upon any fundamental right of the
Advocates;
And,
Also, pass further orders as the Honble Supreme Court may deem fit and proper in
the facts and circumstances of the case.

All of which is most respectfully submitted.


(Counsel for Respondents)

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