Judgment

Patanjali Sastri, C.J.I. - This is an application under Art. 32 of the Constitution for relief in respect of an alleged infringement of the fundamental right of the petitioners under Art. 19 (1) (g) or, alternatively, under Art. 136 for special leave to appeal from a judgement of the High Court of Judicature at Calcutta rejecting their application for the same relief under Art. 226.

2. As the petitioners would clearly be entitled to relief under the one or the other form of remedy if their claim was well-founded, no objection was taken to the maintainability of the present proceeding, and we desire to guard ourselves against being taken to have decided that a proceeding under Art. 32 would lie after an application under Art. 226 for the same relief on the same facts had been rejected after due enquiry by a High Court. We express no opinion on that point.

3. The facts leading to this proceeding are not in dispute and may be briefly stated. The first petitioner is an Advocate of this Court and his name is also on the roll of Advocates of the High Court of Calcutta. As an Advocate of the latter Court he is entitled, under the relevant rules there in force, both to act and to plead on the appellate side but not to act or to appear unless instructed by an Attorney on the original side. On 18-7-1951, he filed in the registry on the original side a warrant of authority executed in his favour by the second petitioner to defend the latter in a pending suit. The warrant was returned on 27-7-1951, with the endorsement that it "must be filed by an Attorney of this Court under the High Court rules and orders, original side, and not by an Advocate." The return was made by an Assistant in charge of suit registry department, who is called as the first respondent to this petition.

The second respondent is the Registrar, original side, who is alleged to have refused on the same ground to accept a warrant filed earlier in a Company matter. It is conceded that the action of the respondents would be valid apart from the right claimed by the first petitioner as an Advocate of this Court under the Supreme Court Advocates (Practice in High Courts) Act, 1951, (hereinafter referred to as the new Act) which provides that such Advocates are "entitled as of right to practise" in any High Court in India. The petitioners, however, claimed that the right to practise thus conferred included also the right to act as well as to appear without the intervention of an Attorney on the original side, and moved the High Court under Art. 226 for issue of appropriate writs, orders or directions to the respondent for enforcement of the right denied to them. A Special Bench consisting of Trevor Harries C. J., Chakravarti and Banerjee JJ. heard the motion and dismissed it, holding that the first petitioner did not on being enrolled as an Advocate of the Supreme Court, become entitled to act on the original side of the Court.

4. The second petitioner has since dropped out of these proceedings, and the first petitioner, who appeared in person and argued his case before us, is hereinafter referred to as the petitioner.

5. As the issues involved are of far-reaching importance to certain sections of the Bar at Calcutta and at Bombay, this Court directed notice of the proceeding to be served on the Incorporated Law Society, Secretary Bar Association, and Secretary, Advocates Association, Calcutta High Court, and Secretary, Bar Association, Bombay High Court, and all of them appeared by their learned counsel, while the Attorney-General appeared in person as intervener. We have thus had the advantage of a full argument from all points of view.

6. A brief historical survey of the functions, rights and duties of legal practitioners in this country may facilitate appreciation of the contentions of the parties. Before the Indian High Courts Act of 1861 (24 and 25 Vict. Ch. 104) was enacted, there were, in the territories subject to the British rule in India, Supreme Courts exercis