Judgment

AYYANGAR J. : The proper construction of Art. 145(1)(a) of the Constitution in the context of a prayer for a declaration that Rule 16 of Order IV of the SC Rules is invalid is the principal point raised in this petition which has been filed by an Advocate who under the Advocates Act, 1961 is entitled to practise in this Court.

2. The petitioner was enrolled in the Madras High Court on November 15 1955 under the Indian Bar Councils Acct, 1926 and was admitted to the rolls of this Court on October 29, 1960 under Order IV of the SC Rules as they then stood. She states that as an Advocate entitled to practise in this Court, she is entitled as of right not merely to plead but also to act, and that the rules of this Court which prescribe qualifications before she could be permitted to act are therefore invalid. The prayer which she makes by her petition is therefore for a declaration that Rule 16(1) of Order IV of the SC Rules as amended in 1962 which contains this prescription of qualification be declared ultra vires of this Court and a further declaration that she is entitled to practise as an Advocate on record in this Court without conforming to the requirements now imposed by the impugned rule.

3. Rule 16 whose validity is challenged runs:

"16. No Advocate shall be qualified to be registered as Advocate on Record unless he-

1. has undergone training for one year with an Advocate on Record approved by the Court, and has thereafter passed such tests as may be held by the Court for Advocates who apply to be registered as Advocates on Record, particulars whereof shall be notified in the Gazette of India from time to time; provided however that an Attorney shall be exempted from such training and test:

2. has an office in Delhi within a radius of 10 miles from the Court House and gives an undertaking to employ, within one month of his being registered as Advocate on Record, a registered clerk; and

3. pays a registration fee of Rs. 25/-".

It might be mentioned that under the Rules though every Advocate whose name is maintained in the common roll of Advocates prepared under S. 20 of the Advocates Act, is entitled to plead, only those Advocates who are registered as "Advocates on record" are entitled to act as well, for Rule 17 of Order provides:

"17. An Advocate on Record shall be entitled to act as well as plead for any party in a proceeding on his filing in the proceeding a memorandum of appearance accompanied by a Vakalatnama duly executed by the party in the prescribed form.

No Advocate other than an Advocate on Record shall be entitled to file an appearance of act for a party in the Court."

4. The contention urged by the petitioner who argued her case in person and presented the points arising with ability and moderation, is that under S. 58(3) of the Advocates Act which reads :

"58(3) Notwithstanding anything in this Act, every person who, immediately before the Ist day of December, 1961, was an advocate on the roll at any High Court under the Indian Bar Councils Act, 1926 or who has been enrolled as an Advocate under this Act shall, until Chapter IV comes into force, be entitled as of right to practise in the SC, subject to the rules made by the SC in this behalf." She is entitled "as of right to practise" in this Court, and she claims that the "right to practise" would include not merely the right to plead, but also the right to act. She is right so far. Her further submission is as regards the scope and content of the rules which might lawfully be made by this Court. Undoubtedly, if there were no rules made by the SC or if as the petitioner contends, the rules now made-Order IV Rules 16 and 17-are invalid the petitioner would be entitled not merely to plead as she is now entitled to, but also to act which latter she is now prevented by R. 17, unless she has complied with the requirements of Rule 16.

5. The question then for consideration is whether the impugned Rules are valid. This depends upon the proper construction of Art. 1