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IN THE HIGH COURT OF KERALA AT ERNAKULAM
S. Manikumar, Shaji P.Chaly, JJ.
Adv. K. G. Suresh S/o. K. V. Gopalan – Petitioner
Versus
The Union Of India, Ministry For Law And Social Welfare, Represented By Secretary, Rashtrapati Bhavan, New Delhi And Ors. – Respondents
WP(C).No.21946 OF 2011(S)
Decided On : 30-03-2021
Criminal Procedure Code, 1973 – Chapter XXVI, Section 195 – Constitution of India, 1950 – Article 21 – Maintenance & Welfare of parents and Senior Citizens Act, 2007 – Sections 6(4) and 8, 17 – Advocates Act, 1960 – Section 30 – Validity of Section 17 of Maintenance and Welfare of Parents and Senior Citizens Act, 2007 challenged – Right of Advocates/Legal practitioners to represent either parties before Tribunal – Petitioner, claiming to be an Advocate practicing in Pathanamthitta courts, has filed instant writ petition, seeking reliefs to issue a writ, order or direction to declare that Section 17 of the Maintenance & Welfare of parents and Senior Citizens Act, 2007, is ultra vires the Constitution, and void, repugnant to Section 30 of the Advocates Act, 1960 – Issue a writ of mandamus or any appropriate writ, order or direction, declaring the right of the Advocates/Legal practitioners to represent the either parties before the Tribunal/Appellate tribunals/court, constituted under Act 56 of 2007
Finding of the court: As rightly contended by counsel for the Bar Council of India, Maintenance and Welfare of Parents and Senior Citizens Act, 2007 came into force on 24.09.2008 in the State of Kerala, whereas, Section 30 of the Advocates Act, 1961 has been notified on 15.06.2011. – Latter enactment has an overriding effect on Section 17 of the 2007 Act. – When the Central Government, in exercise of the powers conferred under sub-section (3) of Section 1 of the Advocates Act, 1961, have appointed 15th June, 2011, as the date on which Section 30 of the said Act shall come into force, the same has to be given full effect from that date onwards – Contention of counsel for the petitioner and the Bar Council of India, that the Tribunals are clothed with the powers of Civil Courts, for the purpose of taking evidence, enforcing attendance, production of evidence, and that denial of legal assistance to the parties before the Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, requires consideration, for the reason that parties to the lis are not expected to know the nuances of law, evidence, both oral and documentary, to be produced. – As Section 30 of the Advocates Act, 1961 has been brought into force from 15.06.2011, Advocates enrolled under the said Act have been conferred with an absolute right thereof, to practice before all the Courts and Tribunals. – By virtue of Section 30 of the Advocates Act, 1961, coming into force from 15.06.2011, the restriction imposed is taken away and in such circumstances, Article 19 of Constitution of India, which guarantees the freedom to practice any profession, enables the Advocates to appear before all the Courts and the Tribunals, subject to Section 34 of the Advocates Act, 1961. – Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is declared as ultra vires of Section 30 of the Advocates Act, 1961 and thus, the petitioner is entitled for a declaration that he has a right to represent the parties before the Tribunal/Appellate Tribunal/Court, constituted under Act 56 of 2007.
Result: Writ Petition Allowed.
JUDGMENT :
S. Manikumar, J.
Petitioner, claiming to be an Advocate practicing in the Pathanamthitta courts, has filed the instant writ petition, seeking the following reliefs:-
(ii) Issue a writ of mandamus or any appropriate writ, order or direction, declaring the right of the Advocates/Legal practitioners to represent the either parties before the Tribunal/Appellate tribunals/court, constituted under Act 56 of 2007.”
2. Facts leading to the filing of this writ petition are that petitioner has challenged the validity of Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, (Act 56 of 2007). He has contended that the said provision is against the authority or right conferred by Section 30 of the Advocates Act, 1961, which speaks about the right of advocates to practice.
3. Petitioner has further stated that Government of India have notified Section 30 of the Advocates Act, 1961, with effect from 15.06.2011, which according to him, is a subsequent legislation and overrides Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. According to him, by virtue of Section 30 of the Advocates Act, Section 17 of the Act 56 of 2007 is invalid.
4. Petitioner has further stated that as per Section 30 of the Act, every advocate shall be entitled, as of right, to practice before any Court, Tribunal or person, legally authorised to take evidence. The said provision also enables the lawyers to practice in the courts across the country, irrespective of their enrollment in any Bar Council, without the need to transfer licence to their desired States.
5. Referring to Sections 6(4) and 8(2) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, petitioner has stated that the Tribunal is empowered to take evidence and conduct inquiry, and, therefore, an Advocate and Legal Practitioner, is entitled as of right to appear before the Tribunal.
6. Petitioner has further stated that the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, came into effect from 31.12.2007. By virtue of Section 1(3) of the Act, 2007, it came into force in the State of Kerala with effect from 24.09.2008, as per Notification SRO 999/2008.
7. Advocates for the last so many years have been claiming the right to practice in all the courts, as of right, and have been agitating for the enforcement of Section 30 of the Act in that behalf. Almost 50 years have passed since the Act was enacted and the provisions have been brought into force only w.e.f 15.06.2011.
8. In this context, petitioner has relied on the decision in Aeltemesh Rein v. Union of India and Others [AIR 1988 SC 1768], wherein a writ of mandamus was issued to the Central Government, to consider, within six months, whether Section 30 of the Advocates Act, 1961 should be brought into force or not. The Hon'ble Supreme Court, however, held that it was the discretion of the Central Government to bring this Section into force by issuing a notification in that behalf.
9. Petitioner has further stated that pursuant to the abovesaid direction of the Hon'ble Apex Court, rendered in the year 1988, Government of India have brought Section 30 of the Advocates Act, 1961, in force only on 15.06.2011, and therefore, advocates can practice as a matter of right in all Courts and Tribunals.
10. Petitioner has also referred to Article 19(1)(g) of the Constitution of India, which guarantees any person to carry on any profession, and Article 39(A), Directive Principles of State Policy, which provides equal justice and free legal aid.
11. Petitioner has further stated that Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 nullifies his constitutional right to represent the parties before the Tribunal, co
constitutional right - Right of Advocates/Legal practitioners to represent either parties before Tribunal/Appellate tribunals - Constitutional right guaranteed under Article 21 of Constitution and le....
Point of law: Section 17 mandates that no party to a proceeding before the Tribunal or Appellate Tribunal shall be represented by a legal practitioner notwithstanding anything contained, in any law.
Section 30 of the Advocates Act, 1961 gives an absolute right to an Advocate to practice before all Courts and Tribunals and would prevail over the Maintenance Act.
The court established that Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is ultra vires the Advocates Act, allowing advocates to represent parties in tribunal pr....
Section 17 of the Senior Citizens Act is unconstitutional, ensuring the right to legal representation in quasi-judicial matters.
The court established that both parents and children have the right to appeal under Section 16 of the Act, emphasizing the need for a purposive interpretation to ensure fairness.
The main legal principle established in the judgment is that the denial of the right of legal representation to the respondent under Section 56 of the Act was unconstitutional, discriminatory, and in....
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