1. Challenge to the validity of Rule 2 made under Section 11 of the Legal Practitioners Act, 1879, restricting Mukhtars' right to address Civil Courts. (Para 2 , 5 )
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1961 Supreme(SC) 297
SUPREME COURT OF INDIA
29th August, 1961,
B.P. SINHA, C.J.I., S.K. DAS, A.K. SARKAR, N. RAJAGOPALA AYYANGAR AND J.R. MUDHOLKAR JJ.
Devata Prasad Singh Chaudhuri and others, Petitioners
Versus
Hon ble Chief Justice and the Judges of the Patna High Court, Respondents. Petn. No. 117 of 1958.
Advocates appeared
M/s. R. K. Garg, M. K. Ramamurthi, S. C. Agarwala and D. P. Singh, Advocates of M/s. Ramamurthi and Co., for Petitioners. 202
Important Points
The High Court's power to define the functions, powers, and duties of legal practitioners under the Legal Practitioners Act, 1879, includes the authority to regulate and delimit their right to practice in civil courts, provided such rules are intra vires the Act.
Subject
Constitutional Law - Professional Regulation
Act Referred
LEGAL PRACTITIONERS ACT: S.11, S.9
Headnote
(A) Legal Practitioners Act, 1879 - Sections 9 and 11 - Right to practice vs. rule-making power - High Court's power to define functions, powers, and duties of practitioners in subordinate courts includes the authority to delimit and regulate the right of practice in civil courts - Sections 9 and 11 must be read together, and the right to practice is dependent on the functions and powers prescribed. (Paras 7, 8)
(B) Constitution of India - Article 19(1)(g) - Fundamental right to practice a profession - A rule made under statutory authority that is intra vires the Act does not constitute an unreasonable restriction on the fundamental right to practice. (Paras 7, 9)
Facts of the case:
An association of legal practitioners challenged the validity of a rule which stipulated that a practitioner shall not be allowed to address any civil court, except for stating the nature of an application, offering legal arguments, or examining witnesses, without the special leave of the court. It was contended that this rule curtailed the statutory right to practice and violated the fundamental right to practice a profession.
Findings of Court:
The impugned rule is within the authority granted to the High Court under the enabling section of the Act.
Issues: Whether a rule restricting the right of practitioners to address civil courts is in excess of the rule-making power conferred by Section 11 of the Legal Practitioners Act, 1879.
Ratio Decidendi: The right to practice granted under Section 9 is not dissociated from the functions, powers, and duties referred to in Section 11. The power to declare functions and powers includes the power to delimit them to regulate the right of practice. Since the statute expressly reserves the power to make rules regarding functions and duties, such rules are valid even if they regulate the scope of the right to practice.
Result: Petition dismissed.
(B) Constitution of India - Article 19(1)(g) - Fundamental right to practice a profession - A rule made under statutory authority that is intra vires the Act does not constitute an unreasonable restriction on the fundamental right to practice. (Paras 7, 9)
Facts of the case:
An association of legal practitioners challenged the validity of a rule which stipulated that a practitioner shall not be allowed to address any civil court, except for stating the nature of an application, offering legal arguments, or examining witnesses, without the special leave of the court. It was contended that this rule curtailed the statutory right to practice and violated the fundamental right to practice a profession.
Findings of Court:
The impugned rule is within the authority granted to the High Court under the enabling section of the Act.
Issues: Whether a rule restricting the right of practitioners to address civil courts is in excess of the rule-making power conferred by Section 11 of the Legal Practitioners Act, 1879.
Ratio Decidendi: The right to practice granted under Section 9 is not dissociated from the functions, powers, and duties referred to in Section 11. The power to declare functions and powers includes the power to delimit them to regulate the right of practice. Since the statute expressly reserves the power to make rules regarding functions and duties, such rules are valid even if they regulate the scope of the right to practice.
Result: Petition dismissed.
Legal Category Hierarchy
Advocates:
D.P.Singh, M.K.RAMAMURTHI, R.K.GARG, RAMAMURTHI, S.G.AGRAWAL
D.P.Singh, M.K.RAMAMURTHI, R.K.GARG, RAMAMURTHI, S.G.AGRAWAL
Table of Contents
2. Whether Rule 2 exceeds the rule-making power under Section 11 of the Legal Practitioners Act, 1879, and violates the fundamental right under Article 19(1)(g). (Para 6 )
3. Sections 9 and 11 of the Legal Practitioners Act must be read together; the power to define functions and powers includes the authority to regulate the right of practice. (Para 7 , 8 )
4. Rule-making power to declare the functions, powers, and duties of legal practitioners under Section 11 includes the power to delimit and regulate their right to practice. (Para 8 )
5. Writ petition dismissed; Rule 2 held to be within the rule-making power of the High Court and not in violation of fundamental rights. (Para 9 )
6. Does the power to define functions, powers, and duties of Mukhtars under Section 11 of the Legal Practitioners Act include the power to restrict their right to practice?
Yes. The court held that Sections 9 and 11 must be read together. The power to declare functions, powers, and duties allows the High Court to delimit them to regulate the right of practice. (Para 8 )
7. Does a rule restricting the right to address a court without leave violate Article 19(1)(g) if it is made under a valid statutory rule-making power?
No. If the rule is intra vires the Act under which it was made, it does not violate the fundamental right to practice a profession. (Para 7 , 9 )
8. How does the right to practice in Civil Courts differ from Criminal Courts under Section 9 of the Legal Practitioners Act?
Section 9 expressly grants Mukhtars the right to appear, plead, and act in Criminal Courts, but for Civil Courts, it provides a right to practice subject to the rules made by the High Court. (Para 8 )
Judgment
S. K. DAS, J. : This is a writ petition on behalf of the Bihar State Mukhtars Association, Patna and the Vice-President and the General Secretary thereof. The petition has been heard ex parte as there has been no appearance on behalf of the Chief Justice and Judges of the Patna High Court who were cited as respondents to the petition.
2. The petitioners contend that certain rules of the Patna High Court made as far back as 1922 under S. 11 of the Legal Practitioners Act, 1879 (Act XVIII of 1879), hereinafter referred to as the Act, in respect of the functions, powers and duties of Mukhtars practising in the subordinate Courts are now invalid and void, because they contravene the fundamental right of the petitioners guaranteed under Art. 19 (1) (g) of the Constitution of India and are not saved by cl. (6) thereof. The petitioners have, in particular, challenged the validity of R. 2 made by the said High Court under S. 11 of the Act and incorporated in Chap. III, Part VII of the General Rules and Circular Orders of the High Court of Judicature at Patna (Civil), 1922. The petitioners pray that an appropriate writ, direction or order be issued by this Court declaring that R. 2 aforesaid is unconstitutional and therefore, void and inoperative. We shall presently read the rule; but before we do so a few facts which are not in dispute may be stated.
3. The petitioners state that the Bihar State Mukhtars Association was formed some 30 years back with the object of generally protecting the interests of the Mukhtars in the State of Bihar practising in the Courts subordinate to the High Court of Patna within the meaning of S. 8 of the Act. At its various annual conferences the said Association passed resolutions to move the High Court for the removal of the restriction imposed by R. 2 aforesaid on the right of Mukhtars practising in subordinate civil Courts. The High Court did not remove the restriction. On July 27, 1958 at an emergent Executive Committee meeting of the Association it was resolved to move the SC under Art. 32 of the Constitution. The present writ petition has been filed in pursuance of that resolution.
4. The enrolment of Mukhtars is made under certain provisions of the Act to which a reference must now be made. Under S. 3 of the Act "a subordinate Court" means all Courts subordinate to the High Court including Courts of Small Causes established under Act IX of 1850 or Act XI of 1865. "Legal practitioner" means an advocate, vakil or attorney of any High Court, a pleader, Mukhtar or revenue-agent. Section 6 of the Act empowers the High Court to make from time to time rules consistent with the Act in respect of certain matters including inter alia the qualifications, admission and certificates of proper persons to be Mukhtars of the subordinate Courts. It appears that by a rule made under S. 6 of the Act, the High Court of Patna laid down that any person who shall produce a certificate from a committee constituted by the High Court that he has passed an examination in the subjects prescribed from time to time by the High Court for the mukhtarship examination may be admitted as a Mukhtar to practise in Courts subordinate to the High Court. Rule 10 laid down the subjects in which the examination was to be held. This examination was known as the Mukhtarship examination. It was abolished some time in the year 1947-48. Under S. 7 of the Act, the High Court made certain rules for the grant of certificates to Mukhtars who had passed the necessary examination for admission as prescribed by the rules referred to above. Section 7 also provided for annual renewal of such certificates. The argument of learned advocate for the petitioners is rested mainly on the provisions of S. 9 and they must be quoted in full.
"Every mukhtar holding a certificate issued under S. 7 may, apply to be enrolled in any Civil or Criminal Court mentioned therein and situate within the same limits; and, subject to such rules as the High Court may from
