Back
SUPREME COURT OF INDIA
E. S. Venkataramiah and M. M. Dutt, JJ.
Aeltemesh Rein, Advocate Supreme Court of India - Petitioner
versus
Union of India & others - Respondent
Writ Petition (Crl.) No. 163 of 1988
Decided on 4.8.1988
(ii) Advocates Act, 1961-Section 30-Right of Practice to enrolled advocates-Section not brought in force even after more than 25 years have elasped from date of passing of Act- Prima facie no justification for not missing into force said section-Whether Court can issue writ of Mandamus to the Union Govt. to bring the S.30 into force? (No) (para 5)- Whether Central Govt. can be asked to consider the question of issuing a notification bringing S. 30 of the Act into force? (Yes) (Para 6)-Result -Writ of Mandamus issued to Central Govt. to consider within six months whether section 30 of the Act be brought into force or not? (para 7)
The court recognized the importance of ensuring that statutory provisions are implemented in a timely manner to uphold the rule of law and justice. It acknowledged that while the legislature has the primary responsibility for enacting laws, the executive has the discretion to bring provisions into force, and this discretion must be exercised reasonably and in accordance with the principles of justice and fairness.
In this case, the court observed that the delay in implementing Section 30 of the Advocates Act, 1961, for over 25 years, was unjustified, especially given that other provisions of the Act had been operational for a considerable period. The court emphasized that the purpose of the legislation was to grant advocates the right to practice throughout the territories to which the Act extends, and the non-implementation of this section was a hindrance to the rights of advocates and the effective functioning of the legal profession. Therefore, the court held that it was appropriate to direct the central government to consider, within a reasonable timeframe, whether to bring Section 30 into force, rather than mandating immediate implementation. The court issued a writ of mandamus, requiring the government to consider the matter within six months, with the understanding that the exercise of discretionary power must be just, reasonable, and fair (!) .
Regarding police conduct, the court noted that the unlawful handcuffing of advocates, especially in Delhi, was a matter of concern that warranted judicial attention. It underscored that police authorities must adhere to legal standards and guidelines when resorting to such measures, and any deviation from these standards compromises the dignity and rights of advocates. The court directed the Union of India to issue appropriate instructions to police authorities to prevent unlawful treatment of advocates and to ensure that police actions are in conformity with legal standards (!) .
In conclusion, the court reaffirmed that while the judiciary respects the discretionary powers of the executive, it also has a duty to ensure that such powers are exercised reasonably and in accordance with the principles of justice. The directive to consider the implementation of Section 30 aims to bridge the gap between legislative intent and executive action, promoting the rule of law and safeguarding advocates' rights. The directives concerning police conduct serve to uphold the dignity of advocates and prevent unlawful treatment by law enforcement agencies.
JUDGMENT
Venkataramiah, J. - On the basis of the allegations made in the above Writ Petition at the time of the preliminary hearing, the Court felt that notice should be issued to the Union of India regarding two matters and accordingly the court made an order that the Union Government shall show cause (i) why it should not be directed to implement faithfully the decision of this Court in Prem Shankar Shukla v. Delhi Administration1 as regards the handcuffing of the accused arrested under the provisions of the Criminal Law; and (ii) why it should not be directed to consider the question of issuing a Notification bringing section 30 of the Advocates Act, 1961 (hereinafter referred to as 'the Act') into force since already more than 25 years had elasped from the date of the passing of the Act.
2. The first question referred to above arose on account of the allegations relating to the alleged handcuffing of an advocate practising in Delhi contrary to law while he was being taken to the Court of the Metropolitan Magistrate at Delhi after he had been - arrested on the charge of a criminal offence. It is urged that the Union Government and the Delhi Administration had not issued necessary instructions to the police authorities with regard to the circumstances in which an accused, arrested in a criminal case, could be handcuffed or fettered in accordance with the judgment of this Court in Prem Shankar Shukla v. Delhi Administration (supra). The learned Attorney General of India very fairly conceded that it was for the Union of India to issue necessary instructions in this behalf to all the State Governments and the Governments of Union Territories. We accordingly direct the Union of India to frame rules or guidelines as regards the circumstances in which handcuffing of the accused should be resorted to in conformity with the judgment of this Court referred to above and to circulate them amongst all the State Governments and the Governments of Union Territories. This part of the order shall be complied with within three-months.
3. We shall now take up for consideration the second question referred to above. The Advocates Act, 1961 received the assent of the President of India on the 19th May, 1961. Sub-section (3) of section 1 of the Act provides that it shall in relation to the territories other than these referred to in subsection (4) come into force as the Central Government may by notification in the Official Gazette appoint and different dates may be appointed for different provisions of the Act. Chapters I, II and VII of the Act were brought into force on 16.8.1961, Chapter III and section 50(2) on 1.12.1961, section 50(1) on
15.12.1961, sections 51 and 52 on 24.1.1962, section 46 on 29.3.1962, section 32 and Chapter Vi (except sections 50 (1) and (2), 51, 52 and 46 which had already come into force) on 4,1.1963, Chapter V on 1.9. 1963 and sections 29, 31, 33 and 34 of Chapter IV of the Act on 1.6.1969. Section 30 of the Act, with which we are concerned, has not yet been brought into force. Section 30 of the Act reads thus:
"30, Right of advocates to practice Subject to the provisions of the Act, every Advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends:
1. in all courts including the Supreme Court,
2. before any tribunal or person legally Authorised to take evidence; and
3. before any other Authority or person before whom such advocate is by or under any law for the time being in force entitled to practise."
4. When section 30 of the Act is brought into force every advocate whose name is entered in the State roll will be entitled as of right to practise throughout the territories to which the Act extends, before the Courts, Tribunals and other authorities or persons referred to therein. Even today there are laws in force in the country which impose restrictions on the right of an advocate to appear before certain Courts, Tribuna
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
