Aswini Kumar Ghosh and Another v. Arabinda Bose and Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Petition No. 160 of 1952

Decision Date: 27 October 1952

Coram: M. Patanjali Sastri, B.K. Mukherjea, Vivian Bose, Ghulam Hasan

In this matter the Supreme Court of India rendered its judgment on 27 October 1952. The case was styled Aswini Kumar Ghosh and Another versus Arabinda Bose and Another. The opinion was reported in the Supreme Court Reports and is cited as 1952 AIR 369 and 1953 SCR 1, with subsequent citations appearing in later law reports. The bench that delivered the judgment comprised Chief Justice M Patanjali Sastri together with Justices Vivian Bose and Ghulam Hasan. Two other judges, Justices B K Mukherjea and Das, expressed dissenting views. The judgment also listed a series of additional citations, including references to the reports of 1954, 1955, 1956, 1957, 1958, 1960, 1962, 1964, 1971, 1977, 1980, 1981, 1982, 1987, and 1992, together with the statutory provision of the Supreme Court Advocates (Practice in High Courts) Act, 1951, section 2. The judgment further mentioned the Indian Bar Councils Act, 1926, with sections 4(2), 5(1), 8(1), 9(4) and 14, as well as procedural rules of the Calcutta High Court Original Side, Chapter I, rules 37 and 38, and the Bombay High Court Original Side, Chapter I, rule 40, all of which were examined in the Court’s analysis.

The Court explained that the practice of law in India ordinarily requires a lawyer to perform both the function of acting for a client and the function of pleading before a court. Accordingly, when section 2 of the Supreme Court Advocates (Practice in High Courts) Act, 1951, grants every Supreme Court advocate the right to “practice” in any High Court, that term must be understood to include the authority to appear, plead, and act on behalf of litigants in all High Courts, including their Original Side jurisdictions. The Court rejected any interpretation that would restrict the word “practice” to a narrow meaning applicable only to the court in which the advocate is enrolled or only to a foreign court where the advocate seeks to work. The judgment emphasized that the statutory right conferred by section 2 cannot be curtailed by rules of individual High Courts unless such power is expressly reserved, which the Act does not provide. Consequently, the Court held that any rule of the Calcutta High Court or the Bombay High Court that attempted to deny a Supreme Court advocate the full spectrum of his statutory rights would be inconsistent with the legislation and therefore invalid.

The Court noted that the right granted to a Supreme Court advocate must be understood in the context of the Bar in India functioning as a single agency that deals with the public litigant. Consequently, a rule issued by a High Court that refuses an advocate the ability to perform an essential part of his function by imposing a dual-agency requirement on the Original Side goes beyond a mere practice rule. Such a rule would constitute a serious intrusion into the advocate’s statutory right to practise. The Court held that the power to make such a rule, unless it is expressly reserved – as it was under the Bar Councils Act – would be inconsistent with the right conferred by section 2 of the Supreme Court Advocates (Practice in High Courts) Act, 1951. Because the Act does not reserve any such power to the High Courts, the statutory right of a Supreme Court advocate under section 2 to plead as well as to act in the High Courts of Calcutta and Bombay, when exercising their Original Jurisdiction, cannot be withdrawn or limited by the rules of those courts. Any rule that the Calcutta High Court may have previously promulgated, which purported to exclude an advocate from practising on the Original Side or from appearing and pleading unless instructed by an attorney, cannot affect that statutory right.

Justice Mukherjea explained that the term “practice” when applied to an advocate is a flexible expression without a rigid definition. Its precise scope can be determined only by reference to the rules of the particular forum in which the profession is exercised. When section 2 of the Supreme Court Advocates (Practice in High Courts) Act, 1951, states that a Supreme Court advocate is entitled as of right to practise in any High Court, it means that the advocate acquires, by virtue of this statutory provision, all the rights enjoyed by an advocate of that court. The advocate’s right to plead and to act is subject to the Bar Councils Act and to the rules validly framed by the High Court, but no rule or provision of law may be binding if it impairs his statutory right to practise in that court solely because he is enrolled as a Supreme Court advocate.

Justice Das added that the words “to practise,” when used in relation to lawyers as a class, simply mean “to exercise their profession,” a dictionary definition that is sufficiently broad to encompass the activities of the entire profession. These words are of indeterminate import and have no fixed connotation. Their meaning varies according to the scope and ambit of the specific category of lawyer to which they are applied, and must be ascertained by reference to the subject or context. Accordingly, a Supreme Court advocate who is entitled only to “appear and plead” in that court, when section 2 authorises him to “practice” in any High Court, must be understood to have the full spectrum of rights that accompany the practice of an advocate in that High Court.

In interpreting the provision, the Court explained that the language could be understood in two ways. The first interpretation meant that a Supreme Court advocate was authorised in every High Court to do exactly what he could do in the Supreme Court, which was limited to appearing before the court and pleading his case. The alternative interpretation held that the provision granted every Supreme Court advocate the right to practise in any High Court in the same manner as advocates who were enrolled in that High Court. Under this view, when a Supreme Court advocate exercised the profession of an advocate in a High Court, he had to follow the rules of practice of that High Court except where those rules were expressly overridden by section 2 of the new Act. The Court noted that section 2 thereby transformed a Supreme Court advocate into a “statutory advocate” of any High Court where he chose to practise, and consequently he was bound by the rules of that High Court unless a rule conflicted with the new statutory right. Regardless of which construction was adopted, the Court held that a Supreme Court advocate could not appear before the Original Side of the Calcutta or Bombay High Courts unless he was instructed by an attorney. The Court referred to the authorities Queen v Doutre (L.R. 9 App. Cas. 745), Powers of Advocates, In re (I.L.R. 52 Mad. 92) and Laurentius Ekka v Dukhi Koeri (I.L.R. 4 Pat. 766).

The Court then turned to the effect of the non-obstante clause in section 2. It observed that the clause could reasonably be read to override any existing law that was inconsistent with the new enactment. Accordingly, sections 9(4) and 14(3) of the Bar Councils Act could not coexist with section 2 of the new Act. The Court explained that, whether by a liberal construction of the non-obstante clause or by the established principle that the operative part of an enactment controls a non-obstante clause when the two cannot be harmoniously read together, the new Act must displace the powers reserved to the High Courts under sections 9(4) and 14(3) of the Bar Councils Act. The Court further clarified that the non-obstante clause removed only those provisions of the Bar Councils Act, 1926, and of any other law that regulated the conditions under which a person not entered on the roll of a High Court could be permitted to practise in that High Court. Provisions that set the conditions for an advocate already enrolled in a High Court to practise in the Original Side of that court were left untouched. Even if the entire Bar Councils Act were excluded for the purpose of section 2, the rules framed by the Calcutta and Bombay High Courts under their Letters Patent would continue to have force of law, independent of any saving provision in the Bar Councils Act, and the Letters Patent themselves would remain fully effective.

In this case the Court observed that remarks uttered by members of Parliament on the floor of the House cannot be used as extrinsic material to interpret statutory provisions. The Court referred to earlier decisions including State of Travancore-Cochin and Another v. Bombay Co. Ltd. (1952 S.C.R. 1112), Administrator-General of Bengal v. Prem Lal (1895 22 I.A. 107), Krishna Aiyangar v. Nella Perumal (1920 47 I.A. 33), A.K. Gopal an v. The State of Madras (1950 S.C.R. 88) and Debendra Narain Roy v. Jogesh Chandra Deb (A.I.R. 1936 Cal. 593) in support of that proposition. The Court further held, speaking for the majority, that the statement of objects and reasons annexed to a Bill, the original form of the Bill, and the fact that certain words or phrases were added to or omitted from the original Bill are likewise inadmissible as aids to statutory construction. The Court noted that judicial opinion on whether the statement of objects and reasons, the original shape of the Bill, or committee reports may be consulted in construing a statute is not uniform. English courts and the Privy Council have consistently ruled that such extrinsic aids must be excluded from consideration. By contrast, some American decisions have allowed the general legislative history, including the steps leading to enactment, amendments, and committee reports, to be examined when the legislature’s intention is unclear. However, the Court emphasized that legislative history is clearly barred where the statutory language is unambiguous. Regarding the role of punctuation, the Court described it as a minor element in statutory construction. Even if the traditional view that punctuation does not form part of the statute is regarded as an imperfect rule, it may be looked at as contemporanea expositio, but it cannot be permitted to control the plain meaning of the text. The Court cited precedents such as Stephenson v. Taylor (1861 1 B.S. 101), Clawdon v. Green (1868 L.R. 3 C.P. 511), Duke of Devonshire v. Conor (L.R. 1890 Q.B.D. 468), Maharani of Burdwan v. Murtanjoy Singh (1886 14 I.A. 30), and Pugh v. Ashutosh Sen (1928 55 I.A. 63) in support of this view. Accordingly the judgment of the Calcutta High Court was reversed. The matter arose under original jurisdiction as a petition filed under article 32 of the Constitution seeking enforcement of fundamental rights. The factual matrix and arguments of counsel were fully recorded in the judgment. The petitioner, Aswini Kumar Ghosh, appeared in person. Counsel for the respondents included B. Sen. Interveners were represented by counsel: the Incorporated Law Society, Calcutta High Court by N. C. Chatterjee with S. N. Mukherjee and B. Sen; the Secretary, Bar Association, Calcutta High Court by Dr. N. C. Sen Gupta with A. K. Dutt and V. N. Sethi; the Secretary, Bar Library, Calcutta High Court by N. C. Chatterjee with B. Sen; and the Solicitor-General for India by C. K. Daphtary.

The counsel appearing for the Secretary of the Bar Association of the Bombay High Court, identified as India with G. N. Joshi and J. B. Dadachanji and their colleague, was designated as Intervener No 4. For the Secretary of the Advocates’ Association of the Madras High Court, K. B. Naidu appeared as Intervener No 5, even though the title was printed as “Secretarv.” The Attorney-General for India, named M. C. Setalvad, was listed as Intervener No 6. The order dated 27 October 1952 recorded that the judgment of Chief Justice Patanjali Sastri together with Justices Vivian Bose and Ghulam Hasan was delivered by Chief Justice Patanjali Sastri. Separate opinions were authored by Justices Mukherjea and Das.

Chief Justice Patanjali Sastri explained that the present proceeding was instituted under article 32 of the Constitution seeking redress for an alleged violation of the petitioners’ fundamental right guaranteed by article 19(1)(g). Alternatively, the petitioners also sought special leave to appeal under article 136 from a decree of the Calcutta High Court that had dismissed their application for the same relief under article 226. Because the petitioners would be entitled to relief under either of those constitutional remedies if their claim proved well-founded, the Court did not question the maintainability of the article 32 petition. The Court further clarified that it was not deciding whether a petition under article 32 could proceed after a similar application under article 226 had been rejected by a High Court, and it expressly refrained from expressing any view on that point.

The factual background, which was not contested, could be summarised as follows. The first petitioner was an advocate of the Supreme Court, and his name also appeared on the roll of advocates of the Calcutta High Court. Under the applicable rules of the Calcutta High Court, an advocate admitted to the Supreme Court was authorised to act and plead on the appellate side of a case, but he could not act or appear on the original side unless he was instructed by an attorney. On 18 July 1951, the first petitioner filed in the registry of the original side a warrant of authority that had been executed in his favour by the second petitioner, authorising him to defend the second petitioner in a pending suit. On 27 July 1951, the registry returned the warrant with a notation stating that the document “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 who headed the Suit Registry Department, and this assistant was identified as the first respondent in the petition. The second respondent, identified as the Registrar of the original side, was alleged to have refused to accept a similar warrant earlier filed in a corporate matter on the same ground.

The Court noted that the action of the Registrar would be valid apart from the claim advanced by the first petitioner that, under the Supreme Court Advocates (Practice in High Courts) Act, 1951—referred to in the petition as the “new Act”—advocates of the Supreme Court were “entitled as of right to practise” in any High Court in India. The petitioners argued that this statutory right to practise should also encompass the right to act on the original side of a proceeding without the assistance of an attorney.

In the present matter, the petitioners contended that they were entitled to appear before the Original Side of the High Court without the assistance of an attorney. Accordingly, they invoked article 226 of the Constitution and asked the High Court to issue suitable writs, orders, or directions directing the respondent to enforce the right that had been denied to them. A Special Bench comprising the Chief Justice Trevor Harries, Justice Chakravartti and Justice Banerjee examined the prayer. The Bench dismissed the petition, holding that the first petitioner, although enrolled as an Advocate of the Supreme Court, did not acquire the entitlement to act on the Original Side of the Court. After the dismissal, the second petitioner withdrew from the proceedings. The first petitioner then appeared in person, presented his arguments before this Court, and was thereafter referred to simply as “the petitioner.”

The issues raised in the petition were considered to have considerable significance for sections of the Bar practising in Calcutta and Bombay. For that reason, this Court ordered that notice of the proceedings be served on the Incorporated Law Society, the Secretary of the Bar Association and the Secretary of the Advocates’ Association of the Calcutta High Court, as well as the Secretary of the Bar Association of the Bombay High Court. All of the notified organisations participated through counsel, while the Attorney-General entered the field as an intervenor in person. Consequently, the Court was able to hear comprehensive arguments representing the various positions advanced by the parties and interested bodies.

To appreciate the contentions advanced, the Court provided a concise historical overview of the functions, rights and duties of legal practitioners in India. Prior to the enactment of the Indian High Courts Act of 1861 (24-25 Vic. Ch. 104), the territories under British rule contained Supreme Courts, which exercised jurisdiction mainly in the Presidency towns, and Sudder Courts, which exercised jurisdiction over the rest of the country (the “mofussil”). The Charter Acts and the Letters Patent that created the Supreme Courts authorised the enrollment of Advocates, and the rules permitted those Advocates to act as well as to plead in the Supreme Courts. However, subsequent rules limited Advocates to merely appearing and pleading, while Attorneys were enrolled separately and authorised to act but not to plead. In the Sudder Courts and their subordinate courts, practitioners who obtained a certificate from the court were allowed both to act and to plead. When the Supreme Courts and Sudder Courts were abolished and their jurisdictions were transferred to the newly created High Courts by the 1861 statute, the distinction between the functions of Advocates and Attorneys was retained in the High Courts. The High Courts, assuming the ordinary original jurisdiction of the former Supreme Courts and the appellate jurisdiction of the former Sudder Courts, continued the practice that Advocates could only appear and plead on the Original Side under the instruction of Attorneys, while on the Appellate Side they were permitted both to act and to plead. In addition, a separate class of practitioners known as Vakils existed; they were not permitted to act nor to plead on the Original Side, but they possessed certain limited rights, the details of which were developed further in the subsequent discussion.

Vakils were originally permitted to act and plead only on the Appellate Side of the courts. Shortly thereafter, the Madras High Court issued a rule that allowed the Vakils in Madras to appear, plead, and act on the Original Side as well, a change reflected in the Matter of the Petition of the Attorneys (1876-78) I.L.R. I Mad. 24. Despite this development, the distinction between the Original and Appellate jurisdictions was preserved in the Calcutta and Bombay High Courts, although each court periodically modified the rule through its own regulations. In contrast, the High Courts that were later established in British India without original jurisdiction did not maintain any differentiation between Advocates and Vakils, except for the requirement that they be authorised by their clients to appear. This position was accurately summarised by a Full Bench of the Allahabad High Court, which held that, “Not only by the Letters Patent but by the Civil Procedure Code, an Advocate may act for his client in this Court in the manner set forth in that statute and do all things that a Pleader, that is, a Vakil, may do, provided always that he be upon the Roll of the Court’s Advocates” (Bakhtawar Singh v. Sant Lal (1887) 9 All. 617, 621). In response to these varying practices, the Legal Practitioners Act of 1879 (Act XVIII of 1879) was enacted to consolidate and amend the law relating to legal practitioners. Section 4 of that Act authorised Advocates and Vakils enrolled in any High Court to “practice” in all subordinate courts and in any other High Court, subject to the permission of the latter court, but prohibited any Vakil or Pleader from practising in a High Court exercising jurisdiction in a Presidency Town. Section 5, on the other hand, granted all persons enrolled as Attorneys in any High Court the right to practise in all courts subordinate to that High Court and in any court in British India other than a High Court established by Royal Charter where they were not on the roll. Importantly, the right to practise conferred by these provisions encompassed both the right to plead and the right to act in the courts mentioned. Subsequently, the Indian Bar Councils Act of 1926 was passed in response to a demand from the legal profession for the unification and autonomy of the Bar. That legislation eliminated the two separate grades of practitioners, Vakils and Pleaders, by merging them into a single class of Advocates who, subject to certain exceptions, were “entitled as of right to practise” in the High Courts in which they were enrolled and in any other court in British India. The Act also provided for the constitution of Bar Councils for each High Court, empowering those Councils to regulate the admission of Advocates, prescribe their qualifications, and inquire into any case of misconduct referred to them. However, the right to practise and the power to make rules under the Bar Councils Act were not intended to limit or affect the unlimited authority of the Calcutta and Bombay High Courts to make rules regarding whether Advocates could practise on the Original Side, as indicated in section 9(4) and section 14 of that Act.

The Court observed that the power to investigate any case of misconduct that might be referred to a Bar Council was separate from the right to practise law and the authority to make rules. Those powers did not curtail or otherwise limit the extensive authority of the High Courts of Calcutta and Bombay to formulate rules that could permit or prohibit Advocates from practising before their Original Side, as provided in section 9(4) and section 14 of the relevant statutes. The Court noted that while this description applied to Advocates practising in the courts that had formerly been termed British India, there was no dispute that Advocates practising in the courts of the Indian States were likewise permitted to appear, plead and act on behalf of parties. Consequently, it became evident that legal practitioners, regardless of the name by which they were called, who practised in every High Court in India—except for the Original Side of the Calcutta and Bombay High Courts—and in the countless subordinate courts throughout the country were always entitled both to plead and to act.

In contrast, the Court explained that in the Original Side of the Calcutta and Bombay High Courts alone, a historical division persisted between the Original and Appellate jurisdictions. Because of this historic split, the functions of pleading and acting, which a legal practitioner normally performs together, were separated and assigned respectively to Advocates and to Attorneys, following “the usage and the peculiar constitution of the English Bar,” as articulated by Lord Watson in the cited authority. The Court then described that the creation of the Supreme Court of India, which exercised appellate jurisdiction over all the High Courts, generated a strong impetus for the unification of the Bar throughout India. In response, Parliament enacted a concise statute titled “an Act to authorise Advocates of the Supreme Court to practise as of right in any High Court.” The statute comprised only two sections. Section 1 set out the short title, while Section 2 provided that, notwithstanding anything contained in the Indian Bar Councils Act, 1926, or any other law regulating the conditions under which a person not entered in the roll of Advocates of a High Court might be permitted to practise in that High Court, every Advocate of the Supreme Court would be entitled as of right to practise in any High Court, irrespective of whether he was an Advocate of that particular High Court. The provision added a safeguard that nothing in the section would allow a person, solely by virtue of being a Supreme Court Advocate, to practise in any High Court where he had previously served as a judge, unless he had given an undertaking not to practise there after ceasing to hold judicial office. According to the petitioner’s argument, this provision gave a Supreme Court Advocate an unconditional right to appear, plead and act in all High Courts, including the High Court in which he was already enrolled.

The petitioner's argument was that a Supreme Court advocate who is already enrolled in a High Court should be allowed to practice in that High Court without any distinction being drawn among the different jurisdictions that the various High Courts exercise. In the Indian context, the term “practise” when applied to an advocate embraces both the function of acting and the function of pleading; consequently, there is nothing in section 2 that justifies restricting that statutory right to pleading alone on the Original Side of the Calcutta High Court, as the respondents attempted to do.

The respondents, on the other hand, argued that the “non obstante” clause appearing in the first part of section 2 provides the key to interpreting the scope of the provision. They maintained that this clause supersedes only those provisions of the Bar Councils Act and of any other law that exclude persons who are not entered in the roll of advocates of a High Court from the right to practice in that Court. Accordingly, they said, the operative clause must be read as granting a right that is co-extensive with the disability removed by the opening clause. In other words, the provision is intended solely to enable Supreme Court advocates who are not enrolled as advocates of any High Court to practice in that High Court despite their lack of enrollment.

Under this construction, the petitioner, who is already an advocate of the Calcutta High Court, could not obtain any additional right in relation to that Court because he does not fall within the class of persons the section was designed to benefit. The respondents further suggested an alternative construction in which the provision would be read as conferring upon all Supreme Court advocates the right to practice in every High Court in India, including those High Courts where they are already enrolled. Even if this broader reading were accepted, the respondents argued that the section would merely allow such advocates to practice in accordance with the conditions that normally govern the practice of advocates in those Courts. They emphasized that the word “practise” is a term of indefinite import; when applied to an advocate it may refer to pleading, to acting, or to both, depending on the conditions that govern the legal profession in the particular court.

Both of these lines of argument found support among the learned judges of the lower court. A third perspective was also raised during the debate. According to that view, a Supreme Court advocate is entitled under the Rules of the Supreme Court solely to appear and plead, and not to act, whereas an “agent” who is enrolled as such is entitled only to act and not to appear and plead. If this view is adopted, Parliament must be understood to have used the word “practise” in the sense of merely appearing and pleading. Accordingly, the purpose of section 2 would be limited to granting Supreme Court advocates the right to appear and plead in all High Courts, and no further or additional right would be intended.

After giving the matter the most careful and thorough consideration, the Court concluded that the petitioner’s contention is correct and must prevail. As previously observed, there are more than twenty High Courts in this country, including the Judicial Commissioners’ Courts that are treated as High Courts for this purpose. In all of those Courts, except for the original jurisdiction of the Calcutta and Bombay High Courts, an advocate ordinarily combines both the functions of acting and pleading as part of the normal activities of legal practitioners.

In this country there were more than twenty High Courts, including the Judicial Commissioners’ Courts that were treated as High Courts for the purpose of the discussion. In each of those High Courts, with the exception of the original jurisdiction of the Calcutta and Bombay High Courts, and in the many subordinate courts—both civil and criminal—that existed throughout the nation, an Advocate performed both the function of acting on behalf of a client and the function of pleading before the court. Those two functions together constituted the ordinary activities of all legal practitioners here, unlike members of the English Bar whose “usage and peculiar constitution” permitted them only to appear and plead and not to act. The Court observed that the peculiar British system that separates the roles of Barristers and Attorneys was not in operation even in the British Dominions and Colonies. As an illustration, the report of the case Queen v. Doutre (1) recorded that counsel for the respondent, while arguing, stated that “In all the Provinces of Canada the functions of Barristers and Solicitors are united in the same person and the rules of the English Bar do not apply there.” When the Judicial Committee upheld the right of that counsel to sue for and recover a quantum meruit for professional services rendered, it remarked that “Their Lordships entertain serious doubts whether in an English Colony where the common law of England is in force, they (that is, general considerations of public policy) could have any application to the case of a lawyer who is not merely an advocate or pleader and who combines in his own person various functions which are exercised by legal practitioners of every class in England all of whom, the Bar alone excepted, can recover their fees by an action at law.” From this authority the Court inferred that it was reasonable to assume that the practice of law in India generally required the exercise of both acting and pleading on behalf of a litigant, and therefore the Indian Bar, in general, functioned as a single agency. Accordingly, when the Legislature conferred upon an Advocate “the right to practise” in a court, the Court held that the expression was to be understood as authorising the Advocate both to appear and plead and also to act on behalf of the suitors in that court, as reflected in the citation (1)(1883) 9 App. Cas. 745. The Court further observed that the term “practice” when applied to any profession merely denoted the pursuit of that profession and involved the functions normally performed by its members. However, the Court found it erroneous to relate the term, as applied to an Advocate, either to the court in which the Advocate was enrolled or to the court where he sought to exercise the statutory right, without reference to the overall structure of the Bar in India. In the Court’s opinion, the expression must be related to the general constitution of the Bar in India as a single agency that deals with the public litigant, a system that prevailed throughout the vast country except in the limited pockets where a dual-agency model imported from England was retained for historical reasons.

In this case the Court noted that, apart from the two small pockets where a dual agency system imported from England continued for historical reasons, the Bar in India functioned as a single agency. Consequently the Court could not accept the submission that, because the Rules of the Supreme Court do not permit its Advocates to act, the term “practise” used by Parliament in section 2 should be interpreted narrowly to mean only the right to appear and plead. The Court observed that Parliament was undoubtedly aware that the Advocates of the Supreme Court were, under the Supreme Court Rules, limited to appearing and pleading in that Court, but that the purpose of section 2 was to grant a designated group of persons – namely the Advocates of the Supreme Court – a right to practise in other courts, specifically the various High Courts of India, irrespective of whether they were already enrolled in those courts. The Court held that this statutory right, which was newly conferred on Supreme Court Advocates with respect to other courts, could not be construed as being dependent on the functions that the Supreme Court Rules permitted them to perform in the Supreme Court itself. The Court further explained that the Rules of the Supreme Court could be altered at any time by the rule-making power vested in the Constitution under article 145, and therefore it would be unreasonable to make the scope of the new statutory right contingent upon the fluctuating scope of functions allowed to Supreme Court Advocates in their own Court. Moreover, the Court warned that such a construction would lead to surprising consequences. For example, if a Supreme Court Advocate who was not entered in the Roll of the Allahabad High Court wished to practise in that High Court where no Attorneys or Agents were present, he would encounter a serious difficulty. It was suggested that a local Advocate could be engaged to instruct him on behalf of the client. Even if it were permissible to replace the required “Agent” with a local Advocate to overcome the prohibition in Order IV, Rule 11 of the Supreme Court Rules that an Advocate may not appear unless instructed by an Agent, this would effectively create a new form of dual agency that did not exist before and that the Court could not have contemplated. The Court further observed that this interpretation would render the statutory right granted by the new Act almost illusory in practice. The Court also found the construction adopted by the learned Judges of the High Court – that the word “practise” in section 2 should be related to the particular High Court in which the Supreme Court Advocate seeks to exercise his right – to be open to objection. According to that view, the same word applied to the same Advocate would have to be understood in a broader or narrower sense depending on the different High Courts or even different jurisdictions within the same High Court, a position the Court considered untenable.

The Court noted that the learned Judges of the High Court had explained the term “practice” by observing that the provision applied to many different High Courts where varying conditions of practice existed. Accordingly, they said that the word “practice” did not possess a single, unchanging meaning in the section; rather, its meaning had to vary depending on which High Court the provision was applied to. In each High Court, the term would acquire the meaning that an Advocate’s right to practise held in that Court at that time, as determined by the local rules and regulations. They added that such meaning could be broader in one High Court and narrower in another, and even within the same High Court it might change over time because a High Court could expand the professional rights of its Advocates. If a High Court chose to enlarge those rights, Advocates of the Supreme Court would thereafter enjoy the enlarged rights in that Court. However, at any particular moment, the Supreme Court Advocate’s right to practise in a given High Court, as conferred by section 2, could be no greater than the right possessed by the Advocates of that Court themselves at that time.

The Court expressed its inability to accept this “ambulatory” interpretation of section 2. It observed that while the full sense of the word “practise” might, in some statutes, be limited by context to include both acting and pleading, no such contextual limitation appeared in the language or the object of the new Act as understood by the Court. The Court further criticised the construction advanced by the learned Judges, which relied on the dictionary meaning of “practise” as the exercise of a profession and therefore suggested that a Supreme Court Advocate could be said to exercise different professions in different High Courts. Under that view, the Advocate would be deemed to practice as a Madras Advocate while appearing in Madras, as an Appellate-Side Advocate or an Original-Side Advocate while appearing before the Calcutta or Bombay High Courts, and so on. The Court found this differentiation to be a curious attempt to read the varying conditions under which an Advocate works in each jurisdiction into the very meaning of “practise”, thereby excluding the act of pleading on the Original Side from the term’s scope. The Court could not appreciate this reasoning, noting that a Supreme Court Advocate, in all the cited situations, seeks to practise only one profession—the profession of an Advocate. Consequently, the Advocate would be obligated to follow the procedural rules of each Court, that is, the prescribed procedure for conducting legal proceedings in that Court, but a rule that denied him the right …

In the judgment, it was observed that insisting on a dual agency for an advocate to perform an essential part of his function, by treating the Original Side merely as a rule of practice, would exceed the permissible authority to make such a rule unless the new Act expressly reserved that power, as it had done in section 9(4) and section 14(3) of the Bar Councils Act. To make a rule of this character without such reservation would conflict with the right granted by section 2. The Court further explained that the authority of the High Courts to frame rules of practice governing procedural conduct and to devise regulations concerning the admission and conduct of legal practitioners originated from separate sources. Initially, these powers derived from distinct clauses of the Letters Patent that created the Courts, and later they were reinforced by provisions of the Civil Procedure Code and by the Bar Councils Act. The judges were said to have missed an important distinction between an advocate who belongs to the Calcutta or Bombay High Court and an advocate who belongs to the Supreme Court when each appears before those High Courts. The former advocate does not possess an absolute right to practice in the Original Side of his own High Court because his entitlement under section 14(1)(a) is expressly conditioned by section 9(4), which preserves the High Court’s power to deny that right in matters concerning the Original Side.

The Court clarified that a local advocate therefore lacks an unconditional right to practice in the Original Side of the Calcutta and Bombay High Courts. Conversely, it was argued, and now asserted, that a Supreme Court advocate becomes, under the new Act, entitled to practice “as of right” in every High Court without any distinction regarding the jurisdiction exercised, because the new Act does not preserve the power that the High Courts previously exercised. In view of this disparity, which was central to the petitioner’s case, it was held that it would be inaccurate to claim that the right conferred on a Supreme Court advocate can be no larger than the right that advocates of the same High Court possessed at the relevant time. The Court then quoted the operative language of section 14(1)(a) of the Bar Councils Act, which states that “An Advocate shall be entitled as of right to practise… (a) subject to the provisions of subsection (4) of section 9, in the High Court of which he is an Advocate,” and reproduced section 9(4), which provides that nothing in the Act shall be deemed to limit or affect the powers of the High Courts of Judicature at Fort William in Bengal and at Bombay to prescribe the qualifications for persons applying to practise in those Courts in their original jurisdiction or to grant or refuse any such application, or to prescribe the conditions under which such persons may be entitled to practise or plead.

It was observed that Section 14(3) of the Bar Councils Act states, “Nothing in this section shall be deemed to limit or in any way affect the power of the High Court of Judicature at Fort William in Bengal or of the High Court of Judicature at Bombay to make rules determining the persons who shall be entitled respectively to lead and to act in the High Court in the exercise of its original jurisdiction.” By virtue of the two preceding provisions, the right of local advocates is expressly made subject to the authority of the Calcutta and Bombay High Courts to either grant or refuse, as they deem appropriate, any application by a person seeking to practise before the original side of those courts, and to prescribe the conditions under which such persons may plead or act. Consequently, the High Courts exercised this power when they framed the rules that were cited, thereby limiting the right of the advocates of those courts to merely appear and plead on the original side, and imposing additional restrictions such as the requirement that they may not appear unless instructed by an attorney. In other words, the advocates of the Calcutta and Bombay High Courts do not possess an unconditional right to practise on the original side. Because these restrictions apply only to the original side, the advocates of those courts remain, under Section 14(1)(a), entitled as of right to practise in the appellate jurisdiction and in any other jurisdiction exercised by the respective High Courts.

Similarly, Section 2 of the new Act provides that every advocate of the Supreme Court is entitled as of right to practise in any High Court. Notably, the new Act does not reserve to the Calcutta or the Bombay High Courts any power to curtail this statutory right by limiting it to pleading alone on the original side. The Court therefore questioned why the legislature, having expressly inserted reservations in the Bar Councils Act to preserve a statutory right of practice for High Court advocates, omitted comparable reservations in the new Act when conferring a similar right, in identical terms, to Supreme Court advocates with respect to the High Courts. The respondents offered two explanations for this omission, neither of which the Court found satisfactory. Their first explanation was that the word “practise” in relation to the original side of the Calcutta and Bombay High Courts was intended to denote only pleading and not acting, because traditionally advocates on that side appeared solely under the instruction of attorneys. The Court had already rejected this construction. Yet, the Court observed, even if that argument were accepted, it would not justify the inclusion of Section 9(4) in the Bar Councils Act and the subjection of the right under Section 14(1)(a) to the overriding powers granted by that provision.

It was observed that if the contention that the word “practise” referred only to pleading were true, the statutory provisions that had been inserted would have been completely superfluous; even without them, “practise” would still signify only pleading. This observation provided an additional reason to reject the narrow construction. Consequently, the Court concluded that the Legislature employed the term “practise” in both the Bar Councils Act and the new Act in its full meaning, encompassing both acting and pleading. In the situation of the Advocates of the Calcutta and Bombay High Courts, the earlier legislation expressly preserved the authority of those courts to limit or exclude the right of practice on the Original Side. By contrast, the new Act made no similar reservation of overriding power. As a result, any rule that attempted to curtail the statutory right would be inconsistent with section 2 of the new Act and would therefore be void and inoperative.

A comparable interpretation of section 14(1)(a) of the Bar Councils Act was articulated by a Full Bench of the Madras High Court in the case titled Powers of Advocates, In re (1928) I.L.R. 52 Mad. 92. That Bench held that a rule issued by the Madras High Court which excluded the enrolled Advocates from acting on the Insolvency Side became invalid and inoperative after the enactment of the Bar Councils Act. The present Court fully agreed with that decision. The learned judges below, urged by counsel for the respondents, attempted to differentiate that precedent by pointing out that the Bar Councils Act made no distinction between the various jurisdictions of the Madras High Court and that the Court’s rules allowed Advocates to act and plead both in the Original and the Appellate jurisdictions. The Court found that reasoning to be erroneous. The lower judges failed to recognise that accepting that line of reasoning would actually lead to the opposite conclusion.

In fact, there had existed a rule under which local Advocates were prohibited from acting in the insolvency jurisdiction of the Madras High Court, and consequently they had not exercised that function. If the term “practise” in section 14(1)(a) were interpreted solely on the basis of past practice, the Court would have been compelled to hold that the Advocates did not acquire any new right by virtue of that provision. Nevertheless, the Full Bench concluded that a new right was indeed conferred, and the substance of its reasoning was set out by Justice Kumaraswami Sastri, who delivered the leading judgment. He stated: “The word ‘practise’ ordinarily means ‘appear, act and plead’, unless there is anything in the subject or context to limit its meaning… I am of opinion that where an Act confers rights to a party in general terms and entitles him to perform more than one function, the cutting down of those rights by a rule would make that rule repugnant to the provisions of the Act.”

In the subsequent argument, it was asserted that the petitioner could not rely on the omission in the new Act of reservations similar to those found in sections 9(4) and 14(1)(a) of the Bar Councils Act. The submission said that the authority to make rules concerning legal practitioners, which was vested in the Chartered High Courts by their Letters Patent, could be exercised only with respect to Advocates who were enrolled in those particular High Courts. Accordingly, a reservation of such limited power would be meaningless in the new Act, because that legislation dealt with the rights of Supreme Court Advocates. This line of reasoning ignored the fact that those High Courts possessed unrestricted discretion to admit or refuse admission to any person seeking to practice as an Advocate, Vakil or Attorney. For example, clause 9 of the Letters Patent of the Calcutta High Court authorised that Court to “approve, admit and enroll such … Advocates, Vakils and Attorneys as to the said High Court shall seem meet.” The Bar Councils Act likewise presumed the existence of a power in the High Courts to exclude persons from practising on the Original Side, as demonstrated by section 9(4), which provided that nothing in that Act would be deemed to affect the power of the Calcutta and Bombay High Courts to grant or refuse the application of persons applying to practise the Original Side of those Courts, or to prescribe the conditions under which such persons could practise that side. It was noted that the expression used was “persons” and not “Advocates”, which, in view of the definition in section 2(1)(a), would confine the power to Advocates of those Courts. When the Bar Councils Act subsequently authorised, by section 14(1)(a), an Advocate enrolled in a High Court to practise as of right in that Court, it expressly made clear that the right so conferred was subject to the power reserved under section 9(4). However, as had already been pointed out, Parliament, in conferring a comparable right under the new Act to Supreme Court Advocates, did not preserve any such overriding power. In the absence of any reservation, the statutory right of a Supreme Court Advocate to plead and to act in the High Courts of Calcutta and Bombay in the exercise of their original jurisdiction could not be withdrawn or restricted by those Courts. Consequently, any rules that the High Courts might have previously made, claiming to exclude any Advocate from acting on their Original Side or from appearing and pleading unless instructed by an Attorney, could not affect that right. The discussion then turned to the non obstante clause in section 2 of the new Act, which appeared to provide the entire basis for the reasoning of the lower Court and for the argument before the present Court. Following that line of reasoning, the learned judges began by asking what provisions that clause sought to supersede.

In the earlier discussion the Court noted that a construction which would force the right created by the enacting clause to be exactly equal to the disability created by the repealed provisions was not appropriate. The Court observed that the meaning of section 2 would become clear only if the Court examined more closely what the section actually supersedes or repeals. It was suggested that the disability removed by the section and the right it confers are co-extensive. The Court disagreed with that approach. According to the judgment, the first step in construing section 2 is to determine what the enacting portion of the section itself provides, applying a fair construction to the words used according to their natural and ordinary meaning. The non-obstante clause, the Court explained, must be understood as operating to set aside as no longer valid any provision in existing law that is inconsistent with the new enactment. The Court indicated that it would return to this clause later in the judgment.

Following the reasoning adopted by the learned judges, two conclusions were reached. The first conclusion was that section 2 does not create a new right for a Supreme Court advocate in relation to the High Court in which that advocate is already enrolled. Instead, the section grants the advocate the right to practice in High Courts where he or she is not entered on the roll as an advocate. Consequently, the petitioner, who was already an advocate on the roll of the Calcutta High Court, was held to be outside the scope of the section with respect to that court. The second conclusion was that the only provisions displaced by the non-obstante clause are section 8(1) and section 14(2) of the Bar Councils Act, Rule 38 of Chapter V of the Original Side Rules of the Calcutta High Court, and a similar rule made under section 15(b) of the Bar Councils Act by the Calcutta Bar Council. Those provisions prescribe the conditions under which advocates of other High Courts may be permitted to practise on the Original and Appellate Sides of the Calcutta High Court, and analogous rules then in force in the Bombay High Court. According to the learned judges, these provisions alone fell within the description “regulating the conditions subject to which a person not entered in the roll of advocates of a High Court may be permitted to practise in that High Court.” All other provisions of the Bar Councils Act, including sections 9(4) and 14(3), together with other rules of the Original Side of both the Calcutta and Bombay High Courts, were held not to have been superseded or repealed by section 2 of the new Act and therefore continued to remain in force.

The Court then set out to examine whether those conclusions were well founded. A considerable debate arose on both sides concerning the comma that appears just before the word “or” in the non-obstante clause. The petitioner argued that the placement of the comma showed that the adjectival phrase “regulating the conditions …” does not qualify the words “Indian Bar Councils Act,” which are separated by the comma, and therefore the entire Bar Councils Act should be considered superseded. By contrast, the counsel for the respondents maintained a different interpretation, asserting that the comma did not alter the intended scope of the non-obstante clause.

In interpreting a statute, the Court held that punctuation marks must be disregarded and cannot be given substantive effect. The Court found that the presence of a comma does not change the grammatical analysis, and it is more correct to read the adjectival clause as qualifying the word “law”. Considering the phrase “anything contained” together with the preposition “in” that follows the disjunctive “or”, the Court concluded that the qualifying clause cannot be read back to modify the words “Bar Councils Act”. Nevertheless, irrespective of the method of construction, the Court accepted that, in drafting the non obstante clause, Parliament principally had in mind those provisions that obstructed an advocate who was not enrolled in a particular High Court from practising in that Court. The Court further observed that this understanding does not necessarily restrict section 2 to the right of Supreme Court advocates to practise only in High Courts where they are not enrolled. The Court emphasized that the proper scope of the operative part of the section must be ascertained by a fair reading of the language in its natural and ordinary meaning, and that in the present case there is little doubt about the result. The expressions “every Advocate” and “whether or not he is an Advocate of that High Court” plainly indicate that the provision was intended to apply to Supreme Court advocates not only with respect to High Courts of which they are not advocates, but also with respect to High Courts in which they have already been enrolled. The learned judges below had dismissed the words “whether or not etc.” with the observation that “they are not very apposite”, reasoning that no person who is an advocate of a particular High Court needs to be an advocate of the Supreme Court in order to practise in that Court. While it may be correct to say that section 2 does not confer any additional right on advocates of many High Courts in relation to their own courts, the petitioner contended that the provision would at least grant advocates of the Calcutta and Bombay High Courts some further right on the original side of those courts, and that this purpose may explain the inclusion of the words in question. The Court warned that it is not a sound rule of construction to discard words in a statute as surplusage when those words can have appropriate application in circumstances that the legislature could have contemplated. Moreover, the Court refused to read the non obstante clause as repealing only the specific provisions that the lower judges had singled out from the Bar Councils Act and the original side rules of the Calcutta and Bombay High Courts. Since, as the Court has noted, the operative part of section 2 embraces all Supreme Court advocates, the non obstante clause can reasonably be understood to override “anything contained” in any existing law that is inconsistent with the new enactment, even though the drafter appears to have had a particular type of law in mind when drafting the clause.

The Court observed that the drafter of the new statute primarily had in mind a particular kind of law that conflicted with the new Act. It held that where the operative part of a statute is clear, it must control the non obstante clause if the two cannot be read together harmoniously; indeed, a later law supersedes any earlier law that is plainly inconsistent with it. The Court cited the maxim “Posteriores leges priores contrarias abrogant” (Broome’s Legal Maxims, 10th Edn., p. 347) to support this principle. Section 2, the Court noted, conferred upon every Advocate of the Supreme Court the right, as of right, to practice in any High Court in India. The expression “entitled as of right” was recognised as having been taken from the Bar Councils Act, and the Court reiterated that the term “practice” as applied to a legal practitioner in India, in the absence of any limiting or restrictive context, encompassed both the functions of acting and pleading. By stating that an Advocate was “entitled as of right to practise,” the statute emphatically affirmed a right to plead and to act independently of the will or discretion of any other person.

The Court then examined whether sections 9(4) and 14(3) of the Bar Councils Act were consistent with that entitlement. Section 9(4) preserved, among other things, the power of the High Courts at Calcutta and Bombay to “grant or refuse, as they think fit,” applications of persons seeking to practice in those High Courts in the exercise of their original jurisdiction. The Court asked how a person could be said to be entitled as of right to practice in a High Court when that Court possessed unfettered authority to reject his application to a significant part of its jurisdiction. Likewise, the Court considered whether a person could be said to be entitled as of right to plead in a High Court if that Court could frame a rule that excluded him from pleading in its original jurisdiction unless he was instructed by an attorney. The Court concluded that sections 9(4) and 14(3) of the Bar Councils Act could not coexist with section 2 of the new Act that granted an Advocate of the Supreme Court the right to practice in any High Court as of right.

Consequently, whether by the liberal construction of the non obstante clause as indicated above or by the well-established maxim of construction previously cited, the Court held that the new Act must have the effect of abrogating the powers retained by the High Courts under the aforementioned provisions of the Bar Councils Act. The Court therefore could not agree with the learned Judges of the lower court that those two provisions had not been superseded or repealed by section 2. Finally, the Court observed that if such reservations had been inserted into the new Act, the analogy with section 14(1)(a) of the Bar Councils Act would have been complete, and the petitioner, as an Advocate of the Supreme Court, could have been prevented by rules made in appropriate terms from acting in the original side of the Calcutta and Bombay High Courts.

In this case, the Court observed that the new Act did not contain any reservation allowing a Supreme Court advocate to be limited to the original side of the Calcutta or Bombay High Courts, and therefore the advocate’s claim in these proceedings was deemed successful. It was argued, however, that even in the absence of such reservations, it should be presumed that Supreme Court advocates were entitled to practise in any High Court only subject to the rules and regulations of that particular High Court. The High Court had asserted that section 2 did not grant an unfettered freedom to Supreme Court advocates to practise in any High Court in any manner they chose, but instead placed them, in each High Court, on an equal footing with the advocates of that Court, obliging them to comply with the same terms and conditions that bind those advocates. The argument continued that without such restraints, Supreme Court advocates would be “let loose” to practise in all Courts without any duty to observe the rules and regulations of those Courts, which would lead to confusion and chaos. Consequently, it was urged that the rules of the Calcutta and Bombay High Courts, which prevented advocates of those Courts from acting on the original side of their jurisdiction or from pleading without the intervention of an attorney, should also be binding on Supreme Court advocates. The Court found no merit in this argument, describing it as based on a misconception. It explained that the right of an advocate to practise ordinarily includes the two-fold function of acting and pleading without the intervention of anyone else, and that any rule or condition that restricts either of those functions effectively diminishes the advocate’s right to practise. Such a restriction, the Court held, is distinct from the usual rules and conditions of practice that all advocates follow in courts. No suggestion was made that a Supreme Court advocate, by gaining the right to practise in the High Courts, was freed from the obligation to conform to the practice rules, regulations, customs, and other matters governing the legal profession in those High Courts. The Court emphasized a vital distinction between ordinary procedural rules and regulations and those rules that aim to curtail the substance of an advocate’s right to act and plead by excluding him from either function. The Bar Councils Act recognised this distinction by expressly reserving to the High Courts of Calcutta and Bombay the power to exclude or impose restrictions on the right of advocates to plead and act on the original side, while no similar reservation was deemed necessary for the power to make ordinary rules and regulations, because those were not considered to detract from the statutory right to practise.

The Calcutta High Court formulated a rule stating that only persons identified in Rule 2 (1), Chapter I of the Original Side Rules—such as practising barristers from England, Northern Ireland and similar jurisdictions—could appear and plead on the Original Side. The Court considered whether this rule could be characterised merely as a matter of internal administration and consequently binding on every advocate practising before that Court, independent of section 9 (4). It observed that any rule which prevents an advocate from acting on the Original Side or from appearing there without the assistance of an attorney infringes seriously upon the advocate’s statutory right to practise. The Court further noted that, unless the statute that grants the right expressly reserves the power to make such restrictive rules, those rules cannot override the statutory right. Reference was made to the problem of exercising disciplinary control over Supreme Court advocates who practise in High Courts where they are not enrolled. The Court recognised that such difficulty, if it exists, may arise under either of the interpretations of the statute that were advanced before it. The Court acknowledged that a Supreme Court advocate unquestionably has the entitlement to appear, plead and act on the Appellate Side of every High Court. It further stated that the manner in which disciplinary jurisdiction applies to the advocate’s conduct on the Original Side must be determined on the same principles as those governing his conduct on the Appellate Side. The Court added that the possibility of disciplinary difficulty does not favour one construction of the statute over the other.

The parties engaged in extensive argument concerning the purpose Parliament intended when it enacted the new Act, each side proposing a purpose that would support its preferred construction of section 2. Both sides relied heavily upon the “statement of objects and reasons” that accompanied the Bill to bolster their respective contentions. They also referred to speeches delivered on the floor of the House by members during the parliamentary debate on the Bill. The Court’s attention was drawn to the original wording of the Bill as introduced in the House and to the amendment that removed part (a) of the proviso to clause (2). Regarding the parliamentary speeches, the Court noted its recent decision that such speeches are not admissible as extrinsic aids for interpreting statutory provisions, citing the case of The State of Travancore-Cochin & Another v. The Bombay Co. Ltd. Concerning the propriety of referencing the statement of objects and reasons, the Court explained that this document merely explains why the mover introduced the Bill and what objectives he sought to achieve. However, the Court warned that those stated objectives may not coincide with the purpose that the majority of members had in mind when they passed the Bill into law. The Court further observed that the Bill could have undergone substantial alterations during its passage through the legislature, making reliance on the introductory statement questionable.

In this case the Court observed that during a Bill’s passage through one or both Houses the reasons for its introduction and the objectives that the mover sought to achieve may change, and there is no assurance that the original motives remain unchanged when the Bill finally emerges as a statute. Because the statement of objects and reasons is not incorporated into the text of the Bill and is not subjected to a vote by the members, the Court held that such a statement should be excluded from consideration as an aid in interpreting the statute. The Court further noted that the omission of part (a) of the proviso to clause 2 of the Bill does not enjoy any special status. That omitted provision had attempted to remove from the scope of the Bill the right of a Supreme Court advocate to plead or to act in any High Court when that Court is exercising its original jurisdiction. The petitioner relied heavily on that omission to argue that Parliament intended the right of a Supreme Court advocate to plead and to act to continue to apply on the original side of a High Court. It was also contended that whether an amendment is accepted or rejected during parliamentary debate forms part of the pre-enactment history of a statute and may illuminate legislative intent where the statutory language is ambiguous. The Court declined to accept this proposition, explaining that the reasons for proposing, accepting, or rejecting a particular amendment are often contested, as they were in the present matter, and without the speeches relating to the motion it is impossible to determine the legislative intention with reasonable certainty. Moreover, where the legislature is bicameral, the second chamber may not have been aware of the reasons underlying the amendment when it considered the measure. Accordingly, the Court held that all three categories of extrinsic material that the parties sought to introduce must be barred from use in ascertaining the true object and intention of the Legislature.

Consequently, treating the present proceeding as an appeal from the judgment of the High Court, the Court set aside the order of that Court. It directed the respondents to accept any warrant of authority that the first petitioner may produce from the legal representative of the second petitioner, who has been reported to have died during the course of the proceedings. No order as to costs was made. The Court further recorded that the matter had been argued before it with extensive thoroughness by petitioner No 1, who appeared in person, as well as by counsel representing the Bar and Advocates’ Associations of the three principal High Courts in India. After giving due consideration to the learned arguments, the Court concluded that the application could not succeed. The subject matter in dispute was noted to be a very short one.

Petitioner No. 1 was enrolled as an Advocate of the Calcutta High Court and possessed the right to practice on both the Original and the Appellate Sides of that Court. This entitlement allowed him to both plead and act on the Appellate Side, while on the Original Side he was permitted to plead only. He subsequently enrolled as an Advocate of the Supreme Court. After the Supreme Court Advocates (Practice in High Courts) Act, 1951 became law, he asserted the additional authority granted by that statute to “act” on the Original Side of the Calcutta High Court. In that capacity, he filed a warrant of power and appearance on behalf of petitioner No. 2 in a suit pending in the Original Side, where petitioner No. 2 appeared as the defendant. The Suit Registrar of the Original Side returned the warrant with an endorsement stating that the document must be filed by an Attorney of the Court in accordance with the rules and orders governing the Original Side, and not by an Advocate. Feeling aggrieved by this refusal, the petitioners instituted an application before the Calcutta High Court under article 226 of the Constitution, alleging violation of the right conferred on the first petitioner by Act XVIII of 1951 and seeking an appropriate writ or order. Bose J., sitting singly, initially granted a rule in the application, and because of the significance of the question, the matter was subsequently referred to a Special Bench consisting of Chief Justice Trevor Harries, Justice Chakravartti and Justice Banerjee. On 21 December 1951, Justice Chakravartti delivered the judgment of the Special Bench, discharged the rule and dismissed the petitioners’ application. The petitioners subsequently filed a substantive petition under article 32 of the Constitution before the Supreme Court and also sought special leave to appeal against the Calcutta High Court judgment. The petition was admitted, notices were issued to the Attorney-General of India and to the Barristers’ and Advocates’ Associations of the High Courts that might be affected by the decision. Several of those associations appeared before the Supreme Court through counsel, and the learned Attorney-General also presented his arguments, which were heard during the proceedings.

The only issue that required determination was whether petitioner No. 1, who was an Advocate of the Supreme Court, could, in addition to his uncontested right to plead on the Original Side of the Calcutta High Court, also rely on section 2 of Act XVIII of 1951 to obtain the right to “act” on that side. The question was significant because the Letters Patent governing the Calcutta High Court, together with the rules of the Original Side, expressly provided that an Advocate of the High Court could not appear in the Original Side unless he was instructed by an Attorney, as prescribed in Chapter 1, Rule 37 of the Original Side Rules. To resolve the issue, the Court needed to examine the precise extent of the right granted to Supreme Court Advocates by section 2 of the 1951 Act and to ascertain the meaning of the term “practice” as used in that provision. The Act comprised only two sections; the first identified the enactment as “The Supreme Court Advocates (Practice in High Courts) Act” and stated that its object was to authorise Advocates of the Supreme Court to practise as of right in any High Court. The entire substantive provision lay in section 2, which declared that, notwithstanding any other law, a Supreme Court Advocate could practise in any High Court. The determination of that question would decide whether the statutory provision extended the Advocate’s capacity beyond pleading to include the full function of appearing as an attorney in the Original Side, unless instructed by an Attorney, as provided in Chapter 1, Rule 37 of the Original Side Rules.

To resolve the issue, the Court first indicated that it was essential to examine the exact scope of the right granted to Supreme Court Advocates by section 2 of the Supreme Court Advocates (Practice in High Courts) Act and to determine precisely what the term “practice” meant in that provision. The Act itself is exceptionally brief, comprising only two sections. The opening section furnishes the short title of the legislation—“The Supreme Court Advocates (Practice in High Courts) Act”—and sets out its purpose, which is expressly stated at the beginning of the enactment as to “authorise Advocates of the Supreme Court to practise as of right in any High Court.” The substantive content of the statute is confined to section 2, which reads: “Notwithstanding anything contained in the Indian Bar Councils Act, 1926 (XXXVIII of 1926) or in any other law regulating the conditions subject to which a person not entered in the roll of Advocates of a High Court may be permitted to practise in that High Court, every Advocate of the Supreme Court shall be entitled as of right to practise in any High Court whether or not he is an Advocate of that High Court.” Following this operative clause, a proviso is inserted, stating that the provision shall not be construed to give any person the right to practise in a High Court of which he had formerly been a Judge, if that person had, at the time he ceased to hold judicial office, executed an undertaking not to practise therein. A short explanatory note that follows the text clarifies that the expression “High Court” in the section also embraces the Court of a Judicial Commissioner, and the statute terminates at that point without further qualification.

The Court then placed the statutory scheme in its historical context, noting that the Supreme Court of India was constituted in 1950 and that article 145(1) of the Constitution empowers the Supreme Court to frame rules “for regulating generally the practice and procedure of the Court,” including rules concerning the persons who may appear before it. Prior to the enactment, advocates of the Supreme Court did not enjoy an inherent right to practise in any High Court across the country. Each High Court had framed its own rules, which imposed considerable restrictions and disabilities on lawyers who were not enrolled on the roll of that particular High Court but who wished to appear and conduct matters before it. The authority to grant or withhold such permission rested largely with the Chief Justice of the respective High Court, who exercised an unfettered discretion on a case-by-case basis. It was not uncommon for even highly esteemed advocates from other High Courts to be denied permission to appear. Following the establishment of the Supreme Court and the accompanying aspiration for a unified Bar, these practices were widely regarded as manifestly unjust and anomalous, prompting legislative intervention to remove the obstacles and to accord Supreme Court advocates an unmistakable right to practise in any High Court without additional conditions.

To correct the shortcoming in the earlier law, the legislature passed the present enactment with the explicit purpose, as expressed in its language, of granting Supreme Court advocates the right to appear before any High Court in India without being subject to any restriction or condition that a High Court might otherwise impose on “outside advocates.” This purpose is largely undisputed. The controversy that now arises concerns the extent of the right that the legislature intended to confer on Supreme Court advocates in order to achieve that purpose. The central issue is the meaning to be given to the word “practise” as it appears in the relevant section of the Act.

Mr. Ghosh contends that the term “practise,” in its ordinary and literal sense, includes the right to appear, to plead, and to act, and that the established rule of construction requires a literal interpretation unless there are sufficient reasons to deviate from it. He further submits that the literal meaning of “practise” cannot be limited or qualified by the opening clause of section 2 of the Act; that clause, which may be described as a non-obstante clause, is not confined merely to removing the disabling provisions that affect those whose names are not entered in the roll of a particular High Court. Rather, he argues, the clause operates to exclude all provisions of the Bar Councils Act for the purposes of this enactment. He also points to the phrase “whether or not he is an Advocate of that High Court” found in section 2, insisting that this language shows that the legislature did not intend merely to eliminate the disabilities of outside advocates, but also sought to confer certain privileges on domestic advocates who happen to be enrolled as Supreme Court advocates.

The meaning of “practise” when applied to a profession is “to follow, pursue, work at, or exercise such profession.” The profession of an advocate may involve both acting and pleading; in some situations it may refer solely to pleading without the act of representing, but it can never denote only acting, because persons who are entitled only to act and not to plead are not classified as advocates. Other categories of legal professionals, such as solicitors and agents, may be permitted to act but not to plead, and the same term “practise” is used to describe their work. It must be remembered that the profession of an advocate can be exercised only within a court of law and subject to the rules and regulations of that court. Accordingly, the word “practise” as applied to an advocate is an elastic expression without a rigid or fixed meaning; its exact scope can be determined only by reference to the rules of the specific forum in which the profession is exercised.

According to the Court, the exact meaning of the term “practice” can be understood only by referring to the rules that govern the particular forum where the legal profession is exercised. In the Supreme Court Rules, the word “Advocate” is expressly defined as “a person entitled to appear and plead before the Supreme Court,” and the definition makes clear that an Advocate does not possess any right to act. Order IV, Rule 31 of those Rules describes the Advocate’s entitlement to appear and plead as the right of “practising.” The subsequent rule, however, refers to the function of an Agent—who may act but may not plead—as “practice” before the Court, thereby using the same term for a different capacity. The Bar Councils Act likewise defines the right of practice for an Advocate in section 14(1), which provides that “an Advocate shall be entitled as of right to practise—(a) subject to the provisions of subsection (4) of section 9, in the High Court of which he is an Advocate.” In this provision the term “practise” is intended to include both pleading and acting, but these rights are limited by rules that the High Courts of Calcutta and Bombay may formulate to determine who may plead and who may act when exercising their original jurisdiction. Sections 9(4) and 14(3) of the Bar Councils Act expressly reserve to the Calcutta and Bombay High Courts the power to make such rules, and under the rules framed by those courts an Advocate is not permitted to appear on the Original Side unless he is instructed by an Attorney. The expression “entitled to practise as of right” that appears in section 14(1) is repeated in other sections of the Bar Councils Act—specifically sections 4(2), 5(1) and 8(1)—but in each of those provisions the word “practise” does not convey an unrestricted right to plead or act. Instead, it carries the same limitations that are prescribed in section 14 of the Act. The same terminology is used in section 2 of the Supreme Court Advocates Act, apparently with identical meaning and implications, and it cannot be argued that it confers an unrestricted right of pleading and acting because the reservations contained in section 14(1) of the Bar Councils Act are not repeated there. Counsel for the petitioner, Mr Ghosh, subsequently drew the Court’s attention to two reported decisions—one from the Patna High Court and another from the Madras High Court. In the Patna case, the issue that arose was whether an Advocate or Vakil whose name appeared on the roll of any High Court could “act” on behalf of a client by filing an application for review of a judgment in a case that had been tried by a court subordinate to the High Court.

In the case decided by the Patna High Court, the issue arose as to whether an advocate or vakil whose name appeared on the roll of any High Court could act on behalf of a client by filing an application for review of a judgment in a court subordinate to that High Court. The court answered the question in the affirmative and relied upon section 4 of the Legal Practitioners Act, which provides that “an Advocate or Vakil enrolled in any High Court shall be entitled to practise in all courts subordinate to the court the roll of which he is entered.” The Patna decision concerned the right of advocates to practise in subordinate courts, and it made clear that in that context no distinction existed between pleading and acting; consequently, the word “practise” was held to encompass both pleading and acting. In a later decision of the Madras High Court, the point for consideration was whether an advocate enrolled in the High Court of Madras under the Indian Bar Councils Act was entitled not only to appear and plead but also to “act” in the insolvency jurisdiction of that court, despite Rule 128 of the Insolvency Rules of the High Court, which reserved such a right exclusively to attorneys. The Madras court held that the advocate possessed the right to act by virtue of section 14(1) of the Bar Councils Act, which entitled an advocate to practise as of right in the High Court where he was enrolled, and because, as far as the Madras High Court was concerned, the Bar Councils Act made no distinction between its various jurisdictions and did not preserve the court’s power to frame rules concerning the original and insolvency jurisdictions. In those circumstances, any rule that curtailed the rights conferred by sections 8 and 14 of the Bar Councils Act would be deemed repealed under section 19(2) of that Act as being repugnant to its provisions. The judgment expressly noted that the position differed with respect to the Bombay and Calcutta High Courts, where the powers of those courts were expressly saved by the Bar Councils Act. This decision therefore demonstrated that the expression “practise” would not include “acting” where valid rules specifically limited the advocate’s authority in particular jurisdictions of a High Court. The matter before this Court was to determine the exact position of a Supreme Court advocate who wished to avail himself of the right of practising in any High Court in India under section 2 of the Supreme Court Advocates Act. The Court needed to decide whether such an advocate should exercise the right only as a Supreme Court advocate in accordance with the rules laid down by the Supreme Court itself, or whether, when appearing before a High Court, his position was the same as that of an advocate enrolled in that High Court, thereby subjecting him to the same rights and disabilities that attached to such persons under the High Court’s own rules. The only other alternative that had been suggested was that the advocate might not be bound by any rules of either the Supreme Court or the particular High Court in which he appeared, with the legislature’s use of the word “practise” conferring both pleading and acting rights irrespective of the practice rules of the specific court.

It was proposed on behalf of the petitioner that he is not bound by any rules of the Supreme Court nor by the rules of the particular High Court before which he appears; the petitioner's counsel argued that the scope of his right depends solely on the language of section 2, and that by using the word “practise” the legislature intended to give him the right to both plead and act in any High Court of his choosing, regardless of the practice rules that operate in that court. The Court observed that the first suggestion was not persuasive. The Court explained that if the provision were read to mean that a Supreme Court Advocate exercising his right of practice in a High Court must be governed by the Supreme Court Rules, the provision would become untenable. Order IV, Rule 12 of the Supreme Court Rules states that “no person shall appear as Advocate in any case unless he is instructed by an Agent.” The term “Agent” is defined as an Agent of the Supreme Court, and no law authorises such an Agent to act in any High Court in India. Consequently, if the Supreme Court Rules were applied, no Advocate would be permitted to appear in any High Court at all. The Court rejected the argument that, even if the Supreme Court Rules were not strictly applicable, the legislature might have intended that a Supreme Court Advocate appearing before a High Court—whether on the original side or the appellate side—should have only the right to plead and must be instructed by an attorney or a local Advocate competent to act. The Court held that, irrespective of any merit such a view might possess, the language of section 2 does not support such a construction, and it cannot be reasonably asserted that the word “practise” must be limited to pleading alone.

The Court further observed that restricting “practise” to pleading would extend the dual system that presently applies only to the original sides of the Calcutta and Bombay High Courts to every High Court in the country, to all their jurisdictions, and even to the subordinate courts—a result the legislature could not have contemplated. In the Court’s view, when section 2 declares that a Supreme Court Advocate is entitled as of right to practise in any High Court, the provision actually confers upon the Advocate, by operation of the statute, all the rights enjoyed by an Advocate enrolled in that particular court. Accordingly, the Advocate’s right to plead or to act would be governed by the provisions of the Bar Councils Act and by the rules validly framed by the concerned High Court, subject to the condition that no rule or legal provision may be enforced in a manner that would in any way impair his statutory right to practise in that court simply because he is enrolled as an Advocate of the Supreme Court.

The Court observed that the provision allowing a person to practice “as an Advocate of the Supreme Court” could have been expressed more clearly if the legislature had intended to give such a person the same right to practice in any High Court as an Advocate who is enrolled in that particular High Court. In the Court’s view, the ordinary meaning of the word “practice” that is used in the statute leads to that implication. The Court further explained that an Advocate’s practice must always be connected with a specific court and must be carried out in accordance with the rules that bind that court, except where those rules are expressly invalidated or become ineffective by necessary implication. The Court noted that, had the legislature expressly provided that a person qualified under section 2 of the Act would be entitled to both plead and act in any High Court in India, any rule that conflicted with that provision could be declared invalid. However, the Court could not conclude that the mere use of the general term “practice” automatically produces that effect. Viewed from this perspective, the third argument advanced vigorously on behalf of the petitioner could not be accepted. The Court held that, as long as the existing rules governing pleading and acting in particular jurisdictions of the various High Courts remain valid and binding, the legislature’s intention to override those rules for the few individuals who happen to be enrolled as Supreme Court Advocates cannot be inferred without clear statutory language to that effect. Moreover, the Court warned that a blanket abrogation of the existing rules would not create uniformity but would instead generate serious anomalies and considerable practical difficulties. In the original jurisdictions of the Calcutta and Bombay High Courts, where a dual system still operates, detailed rules govern the functions of Solicitors, who alone are authorised to act on the Original Side of the court in relation to both the court and the parties. This procedure differs markedly from the procedure prescribed by the Civil Procedure Code. Consequently, it would be difficult, if not impossible, for a Supreme Court Advocate who wishes to appear on the Original Side of the Calcutta or Bombay High Court to fit within the framework of those existing rules. The Court explained that a new set of rules would be required, and that such new rules would have to coexist with the old ones, creating further complications and inconsistencies. The Court added that such a situation would have been understandable only if the legislature had intended to eliminate the dual system altogether and replace it with a single set of rules applicable uniformly to all categories of lawyers. Speaking personally, the Court said it would consider such a uniform change to be highly desirable, but it could find no indication of any such legislative intent either in the wording of the statute or in its historical background.

The Court observed that although a uniform rule allowing all Supreme Court advocates to practise in every High Court would be a highly desirable reform, there was no indication in the statute or its legislative history that Parliament intended such a sweeping change. The purpose of the legislation, the Court noted, was straightforward: it merely granted Supreme Court advocates the right to practise in any High Court in India, without nullifying the local rules that restricted the practice of those whose names were not entered on the High Court’s roll. Because the word “practise” was used without a clear definition, the Court could not conclude that Parliament intended to overhaul the existing regulatory scheme. Consequently, the Court examined the remaining portions of section 2 of the Act to determine whether they shed any light on the question at hand.

In accordance with established principles of statutory construction, the Court explained that every part of a statute must be read together, and each word, phrase, or sentence must be interpreted in the context of the Act’s overall purpose and object. The Court referred to the analysis of a learned judge of the Calcutta High Court, who emphasized the importance of the opening clause of section 2, which expressly excludes the operation of certain statutory provisions. According to that judge, this negative clause serves as the measure and criterion for the right created by the positive clause of the section.

The Court then posed the initial question: to what extent does the opening clause of section 2 eliminate the provisions of any existing law? The clause reads: “Notwithstanding anything contained in the Bar Councils Act (XXXVIII of 1926), or in any other law regulating the conditions subject to which a person not entered in the roll of Advocates of a High Court may be permitted to practise in that High Court ….” The Court adopted the view of the Calcutta judge that this clause is intended to remove all provisions of the Bar Councils Act or any other law that place restrictions on individuals who are not enrolled as advocates of a particular court from practising before that court. The exclusion, the Court held, is limited to that extent and does not affect other provisions of the Bar Councils Act or other statutes that specify the conditions under which an advocate enrolled in a High Court may practise on the Original Side of that court.

Therefore, if those other provisions continue to be valid and effective, it is reasonable to interpret the word “practise” in section 2 as meaning “practise in accordance with the existing rules” rather than as a word that supersedes them. The Court noted that the opposing counsel, Mr Ghosh, argued that a proper construction of the clause should be understood to exclude the entire Bar Councils Act, not merely the specific provisions dealing with restrictions on non-enrolled persons. However, the Court found that this broader interpretation was not supported by the language of the clause.

The argument presented by Mr. Ghosh was that the opening clause of the provision should be read to eliminate the entire Bar Councils Act, including those sections that relate to disabilities attaching to advocates of other High Courts, so that the right of practising conferred by the section could be exercised without the restrictions or limitations flowing from any provision of the Bar Councils Act. To support this contention, Mr. Ghosh laid great stress on a comma that separates the words “Bar Councils Act” and the figures and words that follow from the expression “or in any other law” which comes immediately after that. He further asserted that, under the ordinary rules of interpretation, the adjectival phrase “-regarding the conditions etc.” should be taken to modify the word or phrase immediately preceding it and not a more remote antecedent. These arguments, though they possess an air of plausibility, failed to impress the Court. The Court observed that punctuation is a minor element in the construction of a statute and that English courts traditionally give it very little attention, as noted by Cockburn C.J. in Stephenson v. Taylor, where he said that “the Parliament Roll there is no punctuation and we therefore are not bound by that in the printed copies.” The Court added that, however, the Vellum copies printed since 1850 sometimes contain punctuation, and when such punctuation occurs it may be regarded as a sort of contemporanea expositio. When a statute is carefully punctuated and doubt exists about its meaning, weight may rightly be given to the punctuation, although it cannot be allowed to control the plain meaning of the text. Similarly, although a relative or qualifying phrase is normally taken with the immediately preceding term or expression, that rule must be discarded when it runs counter to common sense and the natural meaning of the words (i) (i861) 1 B. & S. page 101. (2) See Craies Statute Law, page 185. (3) Vide Crawford Statutory-Construction, Page 343. (4) ibid. The Court found considerable force in the opinion expressed by Justice Chakravartti that, in the present case, the effect of the position of the comma or the particular array of words in the sentence has been completely neutralised by the use of the word “other” occurring in the phrase “or in any other law.” The result, as the learned judge explained, is that the Bar Councils Act has been positioned as an alternative to other laws and both have been subjected to the qualification contained in the qualifying clause. Assuming, however, for argument’s sake that Mr. Ghosh is correct and that the whole of the Bar Councils Act is eliminated by the opening clause of the section, the Court expressed the view that even then the construction would not really improve the position.

In the discussion, it was observed that the Bar Councils Act itself contained no provision concerning the right to plead or to act on the Original Side of any High Court. The only rights saved by Sections 9(4) and 14(3) of that Act were the powers of the Calcutta and Bombay High Courts to make rules on that subject, and those rules were exercised by the courts under the authority granted by their Letters Patent. Section 19(2) of the Bar Councils Act was then quoted in full: “When sections 8 to 16 come into force in respect of any High Court of Judicature established by Letters Patent, this Act shall have effect in respect of such Court notwithstanding anything contained in such Letters Patent, and such Letters Patent shall, in so far as they are inconsistent with this Act or any rules made thereunder, be deemed to have been repealed.” The Court considered that if the entire Bar Councils Act were excluded for the purposes of Section 2 of Act XVIII of 1951, the rules that the Calcutta and Bombay High Courts had framed under their Letters Patent would continue to be valid and would retain their own force even without the saving provision contained in Section 19(2). Consequently, the Letters Patent themselves would remain fully operative. The effect of this situation, the Court explained, would be that Rule 37, Chapter I of the Original Side Rules of the Calcutta High Court and Rule 40(2) of Chapter II of the Bombay High Court Rules – which prohibit any advocate from appearing on the Original Side of those courts unless instructed by an attorney – would fall outside the scope of the opening clause of Section 2, because those rules do not regulate the conditions of “outside” advocates. The Court then turned to Rule 6, Chapter I of the Bombay High Court Rules, which had been highlighted by the Attorney-General. That rule provides that an advocate of any other High Court may appear in a particular case on the Original Side of the court with the permission of the Chief Justice, provided he is instructed by an attorney, and that an advocate of the Bombay High Court must appear together with him. In the Court’s opinion, the entire provision must be held invalid for the purposes of Section 2 of Act XVIII of 1951. Accordingly, a Supreme Court advocate who wished to appear and plead on the Original Side of the Bombay High Court would neither need to obtain the Chief Justice’s permission nor be required to be accompanied by a Bombay High Court advocate. The advocate would still have to be instructed by an attorney, but that requirement arose from the other provisions that applied to Bombay High Court advocates themselves. The Court indicated that it was prepared to hold that the matters excluded by the opening clause of Section 2 could not extend to the provisions just discussed.

In this case, the Court observed that the provision did not specify precisely how far the new right created by the section extended. The Court held that, on its negative aspect, the section removed all disabling provisions that had previously applied to persons who were not enrolled as advocates of any particular High Court, insofar as Supreme Court advocates were concerned. On its positive aspect, the section granted Supreme Court advocates a statutory privilege to practice, as a matter of right, in any High Court in India regardless of whether they were enrolled as advocates of that court. The Court emphasized that this positive element was signified by the words “whether or not he is an Advocate of that court” which appeared at the conclusion of the section. While it might not be entirely accurate to say that those words were wholly inappropriate, the Court explained that the section nevertheless intended to confer, albeit indirectly, certain privileges on those who were enrolled as advocates of the respective High Courts as well. The Court then referred to Section 9(4) of the Bar Councils Act, which provided that nothing in that section or any other provision of the Act should be construed as limiting or affecting the powers of the High Courts of Judicature at Fort William in Bengal and at Bombay to prescribe the qualifications required of persons applying to practice in those courts in the exercise of their original jurisdiction, nor to grant or refuse any such application, or to prescribe the conditions under which such persons might be entitled to practice or plead. The Court noted that similar provisions existed in the rules of both the Bombay and the Calcutta High Courts. Under Rule 1, Chapter I of the Calcutta Original Side Rules, even an advocate of that court was required to make an application to be entitled to appear and plead before the Original Side, and could exercise that right only after receiving permission. The Court held that such rules would cease to have effect after the enactment of Act-XVIII of 1951, and that a Supreme Court advocate would be entitled to plead in the Original Side of the Calcutta High Court as a matter of right without complying with any formalities prescribed by the court’s rules. The Court rejected Justice Chakravartti’s doubt that a Supreme Court advocate, who was presumably not an advocate of the Calcutta High Court, could plead in its Original Side, stating unequivocally that the express provision of Section 2 of the Act left no room for doubt. Finally, the Court observed that Mr Ghose’s attempt to support his contention that the legislature intended to confer upon Supreme Court advocates the right to plead as well as to act in all High Courts in India rested upon three cited authorities.

The Court observed that the petitioner first relied on the statement of objects and reasons that had accompanied the original bill. In that explanatory statement, the right to “practice” was expressly defined as encompassing both the right to plead and the right to act. The petitioner then argued that, in the original draft of the legislation, proviso (a) to section 2 expressly excluded from the operation of that section the rights of pleading and acting in the Original Side of the High Courts. The proviso, however, was removed when the final Act was enacted, and the Act was passed without that exclusion. Finally, the petitioner contended that the term “practice”, as it appears in the existing proviso to section 2, must be understood to include both pleading and acting, and that it would be contrary to sound rules of statutory construction to give different meanings to the same word in two different parts of the same provision.

The Court then referred to several authoritative pronouncements of English courts and of the Judicial Committee of the Privy Council, which hold that, when construing a statute, any negotiations that preceded the enactment and any earlier form of the bill must be disregarded. Lord Halsbury was quoted as saying, “We cannot interpret the Act by any reference to the bill, nor can we determine its construction by any reference to its original form.” The Court further noted that it is impermissible to ascertain the meaning of a word used in an Act by referring to the proceedings of the Legislative Council, and that language uttered by a “Minister of the Crown” in proposing a measure in Parliament is inadmissible for statutory interpretation. In a cited Calcutta decision, the judges refused to consult the statement of objects and reasons as an aid to construction. The Court listed several authorities, including Vida Herron v. Rathmins (1802) A.C. 492 at 502, Vida Krishna Ayyangar v. Nellaperumal (1920) 47 I.A. 33, Assam Railway & Trading Co. Ltd. v. Inland Revenue Commissioners (1935) A.C. 443, Administrator General of Bengal v. Premlal (1895) 12 I.A. 107, and Vida Debendra v. Jogendru (1936) A.I.R. 593. It remarked that judicial opinion on this point is not uniform and that some American decisions allow reference to the general legislative history—including the steps leading to enactment, amendments, and committee reports—when the statute’s meaning is doubtful, but they categorically reject such materials when the statute is clear. Even assuming the American approach were applicable, the Court found that the first two contentions raised by the petitioner offered no real assistance. While it accepted that the statement of objects and reasons had described “practice” as comprising both pleading and acting, the Court emphasized that the original bill did not, in any way, intend to confer upon Supreme Court Advocates the right to either plead or act in the Original Side of any High Court.

In the judgment it was observed that the original provision of the Act expressly stated that a Supreme Court advocate could not plead or act in any High Court when exercising that Court’s original jurisdiction. This limitation was set out in the original proviso (a) to section 2, and the final part of the statement of objects and reasons read as follows: “The present bill is intended to achieve such unanimity by providing that every Advocate of the Supreme Court shall be entitled to practise as of right, in any High Court otherwise than its Original Side.” The Court acknowledged that the petitioner, Mr Ghosh, sought to rely on the fact that the first proviso, which excluded the original jurisdiction of the High Courts from the operation of section 2, had later been deleted. The Court noted, however, that the mere deletion of the proviso did not by itself demonstrate any change in legislative intent. The purpose of the proviso, when it existed, was to restrict the right of practice conferred by section 2 to the appellate jurisdiction of the High Courts only. Accordingly, under that proviso a Supreme Court advocate was not authorised to act or plead on the Original Side of any High Court in India (1) Vide Crawford Oil statutory Construction page 383 High Court in India. The Court further pointed out that this restriction was unrelated to the dual system of original jurisdiction that existed in the Calcutta and Bombay High Courts, and it bore no connection with the Bar Councils Act or with the rules of the Calcutta and Bombay High Courts governing practice. On the other hand, the Court explained that if, as it had previously stated, section 2 was intended to give Supreme Court advocates the same right of practice in the various High Courts as advocates enrolled in those courts, then the original proviso (a) substantially curtailed that right. Under that proviso, Supreme Court advocates were denied the right to plead on the Original Side of the Calcutta and Bombay High Courts, and they were also unable to act or plead on the Original Side of the Madras High Court, even though the Bar Councils Act would have otherwise granted them those rights. The Court observed that the subsequent removal of the proviso could simply indicate that the particular restriction had been withdrawn and that the rights created by section 2, in the absence of the proviso, remained intact. Nevertheless, the Court warned that it was hazardous to interpret the meaning of a statutory word by referring to a provision that no longer existed. The reasons for the legislature’s deletion of the clause were unknown, and the Court held that it was not permissible to speculate on those reasons. Moreover, the Court considered that consulting the legislative debates or speeches delivered on the floor of the House to determine the meaning of the words used in the enactment was inadmissible. Finally, the Court stated that the use of the word “practise” in the now-deleted proviso to section 2 was of no significance, because section 2 itself conferred certain rights.

Section 2 of the Supreme Court Advocates (Practice in the High Courts) Act, 1951 confers additional rights on advocates who are enrolled to practice before the Supreme Court. Under this provision those advocates acquire the right to practise in every High Court in India, but that right is subject to the rules and regulations that govern advocates in each particular High Court. The proviso to the section creates a specific exception to the general rule. It provides that if an advocate of a High Court becomes a judge of that same court and, at the time of taking judicial office, gives an undertaking that he will not practise in the court after he ceases to be a judge, then the advocate cannot rely on the rights created by the section in violation of his undertaking. This plain meaning shows that the legislature, when drafting the proviso, was not concerned with limiting the extent of the right that an advocate-judge possessed; rather, the extent of the right remained dependent on the rules of the High Court where the advocate intends to practise. Accordingly, the Court agreed with the view expressed by the Calcutta High Court, held that the interpretation adopted by that Court was correct, and consequently dismissed the present application. No order as to costs was made.

The present proceedings were initiated by a petition filed by two applicants. The first applicant, Sri Aswini Kumar Ghosh, was an advocate of the Calcutta High Court who had been enrolled on both the Original Side and the Appellate Side of that Court. As an advocate of the Calcutta High Court, he was authorized to act and plead on the Appellate Side and to plead on the Original Side. He had also been enrolled as an advocate of the Supreme Court, a status defined in Order 1, Rule 2 of the Supreme Court Rules as a person entitled to appear and plead before the Supreme Court. On 26 May 1951, Mr Ghosh served notices on the Registrars of both the Original and the Appellate Sides of the Calcutta High Court, informing them that, in exercise of the right conferred by the Supreme Court Advocates (Practice in the High Courts) Act, 1951, he would henceforth “practice, i.e., act and plead,” in that High Court also as a Supreme Court advocate. Subsequently, on 14 July 1951, acting in his capacity as a Supreme Court advocate, he tendered what he described as a warrant of appearance under Rule 58 of the Indian Companies Rules, which had been framed by the Calcutta High Court in a winding-up petition concerning a company. The Registrar returned that warrant because Rule 58 requires a person intending to appear before the winding-up petition to leave a notice, signed either by himself or his attorney, with the petitioner or his attorney; the rule does not authorize the filing of a notice signed solely by an advocate. The second applicant, Sri Jnanendra Nath Chatterjee, was the defendant in the matter, and his involvement is set out in the subsequent portion of the record.

In suit number 2270 of 1951, which was pending before the Original Side of the Calcutta High Court, the defendant Jnanendra Nath Chatterjee executed a “warrant of appearance and power” on 18 July 1951 in favour of Aswini Kumar Ghosh. Aswini Kumar Ghosh, acting as the advocate for Jnanendra Nath Chatterjee, filed that warrant with the assistant who was in charge of the Suit Registry Department of the Original Side. The filing was intended to satisfy the requirements of Chapter 8, rule 15 of the Original Side Rules. However, rule 15 prescribed that a defendant must enter his appearance to a writ of summons by filing a written memorandum that either gave the name and place of business of the defendant’s attorney or declared that the defendant would defend in person, together with his own name and place of business. The rule made no provision for an advocate to file a document on behalf of a defendant. Consequently, on 27 July 1951 the warrant of appearance was returned by Arabinda Bose, the assistant in the Suit Registry Department, with a note stating that “the warrant must be filed by an attorney of this Court under High Court Rules and Orders, Original Side, and not by an Advocate.” Following that return, Jnanendra Nath Chatterjee entered his appearance in person on 30 July 1951 and has since defended the suit personally. Notwithstanding this development, both petitioners subsequently approached the Calcutta High Court under article 226 of the Constitution and obtained a rule that required the two respondents, Arabinda Bose and S. N. Banerjee, the Registrar of the Original Side, to show cause why a writ or order should not be issued to enforce the fundamental right claimed by Aswini Kumar Ghosh to “practice, i.e., to act and plead the Original Side of this Court,” a right he asserted was conferred by Act XVIII of 1951 and guaranteed by article 19(1)(g) of the Constitution. The rule was heard by a special bench comprising Chief Justice Harries, Justice Chakravartti and Justice Banerjee, who discharged the rule and dismissed the petition on 21 December 1961. The High Court’s judgment indicated that the petition had not raised the alleged fundamental right but had confined its argument to the provisions of the Supreme Court Advocates (Practice in the High Courts) Act, 1951. Because the powers of the High Court under article 226 are not limited to the enforcement of fundamental rights, the petitioners could have relied on the statutory rights under that Act. The petitioners, however, did not seek or obtain the High Court’s leave to appeal to this Court, and they filed the present petition only after the time fixed by the rules for applying for special leave to appeal had expired.

The petitioners filed the present petition after the period prescribed for seeking special leave to appeal to this Court had already elapsed. Their petition is reported as an application under Articles 22(1), 32(1) and 32(2), 135 and 136(1) of the Constitution of India. In the prayer clause, the petitioners request that this Court issue directions, orders or appropriate writs against the respondents for the enforcement of the fundamental rights guaranteed to them by Articles 19(1)(g) and 22(1) of the Constitution. They also seek an order declaring that petitioner Aswini Kumar Ghosh may act on behalf of his clients as an advocate on the Original Side of every High Court in India, including the Calcutta High Court, and an order upholding the right of petitioner Jnanendra Nath Chatterjee to be defended in the present suit by Aswini Kumar Ghosh, together with such consequential reliefs as may be appropriate. An alternative prayer asks this Court to treat the petition as an application under Article 136 for special leave to appeal against the judgment and order of the Special Bench of the Calcutta High Court that dismissed the petitioners’ application under Article 226, and also to condone the delay in filing the present petition. At the hearing, no serious suggestion was made that the rights of petitioner Jnanendra Nath Chatterjee, whether fundamental or otherwise, had been infringed in any manner. Moreover, the petition was not presented as a proceeding for the enforcement of any fundamental right of petitioner Aswini Kumar Ghosh that is guaranteed by Article 19 of the Constitution. What was asserted before us by petitioner Aswini Kumar Ghosh, who appeared in person, was the right that had been conferred upon him as an advocate of this Court by Section 2 of the Supreme Court Advocates (Practice in the High Courts) Act, 1951 (Act XVII of 1951), hereinafter referred to as “the Act”. In these circumstances, the petition was not genuinely presented as an application under Article 32 of the Constitution. Consequently, it was unnecessary for the Court to express an opinion on whether a petitioner whose application for enforcement of an alleged fundamental right under Article 226 has been rejected by the High Court may maintain a fresh application under Article 32 for the same relief on the identical facts and grounds. Nevertheless, the petition was presented before us as an application under Article 136 for special leave to appeal from the judgment of the Special Bench of the Calcutta High Court. We were urged to proceed with the matter as if special leave to appeal had already been granted and the delay in filing had been condoned by this Court. The Court declined to accept that approach, noting that it does not wish to foster the notion that an aspiring appellant who has neither sought nor obtained leave from the High Court, and who offers no explanation for the delay, should automatically receive special leave from this Court.

In the petition, the applicant did not explain why no application had been made to the High Court nor why there was a delay in approaching this Court, yet the petition nevertheless asked for special leave from this Court on that bare ground. Because the matter had been proceeded with as an appeal, the Court expressed its views on the questions that had been presented. The Court observed that there was no dispute that the Act had conferred certain new rights upon advocates of the Supreme Court. The controversy, however, related to the breadth and extent of the right that had been conferred, and it centred on the expression “to practise” used in section two of the Act. To resolve this controversy, the Court held that it was necessary to determine the true meaning of that expression as employed in the statute. The Court further noted that the provisions of the Act clearly applied to and affected all High Courts throughout India, and therefore it was essential to consider the status and position of advocates as they existed in the various High Courts. The Court then turned to the historical foundation of the High Court system. It recalled that the Indian High Courts Act of 1861 (24 & 25 Vict. C. 104) by its section one authorised Her Majesty, by Letters Patent, to create and establish High Courts for the three Presidencies of Bengal, Madras and Bombay. Section nine of that statute provided that each High Court so established should possess and exercise civil, criminal and other jurisdiction, both original and appellate, as specified therein, and that such powers and authority for the administration of justice in the respective Presidency would be granted and directed by the Letters Patent. Section sixteen further empowered Her Majesty to establish a High Court in any part of her dominions in India that was not already within the local jurisdiction of another High Court. Acting upon this authority, High Courts were constituted by Letters Patent at Fort William in Bengal, at Madras and at Bombay. Clause nine of the Letters Patent of each of the three Presidency High Courts authorised each Court to “approve, admit, and enrol such and so many Advocates, Vakils, and Attorneys as to the said High Court shall seem meet; and such Advocates, Vakils and Attorneys shall be and are hereby authorised to appear for the suitors of the said High Court, and to plead or to act, or to plead and act, for the said suitors, according as the said High Court may by its rules and directions determine, and subject to such rules and directions.” Subsequently, other High Courts were established from time to time by Letters Patent at various locations such as Allahabad, Patna, Lahore and Nagpur, and clause seven of the respective Letters Patent conferred upon each of those Courts the similar power to make rules. The Court observed that it was well known that each High Court actually framed rules governing the admission of advocates, vakils and attorneys.

The High Courts of Calcutta, Madras and Bombay divided their jurisdiction into two broad categories, original jurisdiction and appellate jurisdiction, and by means of their rules created an internal classification of advocates, vakils and attorneys. Accordingly, advocates or vakils enrolled on the Appellate Side were authorized to appear, act and plead, whereas advocates enrolled on the Original Side were permitted only to appear and plead, with the function of acting being reserved for attorneys whose names appeared on a separate roll. The Madras High Court later abolished this internal classification, allowing its advocates to appear, act and plead on both the Original Side and the Appellate Side. In contrast, the Calcutta and Bombay High Courts retained the distinction between the two sides. Chapter I, rule 37 of the Original Side Rules of the Calcutta High Court provided that persons to whom those rules applied could not appear unless they were instructed by an attorney. The Bombay High Court contained a similar provision in Chapter I, rule 40 of its Original Side Rules. Although the remaining Letters Patent High Courts in India possessed extraordinary original jurisdiction in both civil and criminal matters, they did not draw a separation between original and appellate jurisdiction as Calcutta and Bombay did, and the advocates enrolled in those courts were permitted to appear, act and plead in all jurisdictions. In addition to the Letters Patent High Courts, other High Courts such as those of Assam and Orissa and the High Courts of Part B States had framed their own admission rules, under which the advocates of all those courts could appear, act and plead. Consequently, at the date of the Act, every advocate of every High Court—including those enrolled on the Appellate Side of Calcutta and Bombay—could appear, act and plead throughout their own courts, while only the Original Side advocates of Calcutta and Bombay were limited to appearing and pleading on the Original Side. Apart from the bar on acting imposed by the Calcutta and Bombay High Courts on their Original Side advocates, each High Court prescribed, in its respective rules, certain conditions that an advocate not on its roll had to satisfy before being allowed to appear and plead in that court. For example, Chapter I, rule 38 of the Original Side Rules of the Calcutta High Court stated that an advocate of any other High Court or Chief Court could, with the permission of the Chief Justice, appear and plead for parties in matters arising in or out of the original jurisdiction or in appeals therefrom, provided he was a member of the Bar of England or of Northern Ireland, or a member of the Faculty of Advocates in Scotland, or a person entitled to appear and plead on the Original Side of the High Court of Judicature at Bombay, and that he was properly instructed by an attorney.

The Court explained that the Original Side of the High Court of Judicature at Bombay required an advocate to be properly instructed by an attorney. It noted that a rule made under section 15(b) of the Indian Bar Councils Act governs the Appellate Side of the Calcutta High Court. That rule permits an advocate who belongs to another High Court to “appear and plead” before the Appellate Side of the Calcutta High Court in a specific case or cases only after obtaining prior permission from the Chief Justice. The Court further referred to Chapter I, rule 6 of the Bombay Rules, which applies to the Original Side, and to the rule under the Indian Bar Councils Act that applies to the Appellate Side of the Bombay High Court, which is reproduced in Schedule II of Part II of the Appellate Side Rules. The Court observed that there is no dispute that every other High Court has similar provisions—rules in pari materia—that impose conditions on advocates who are not on that Court’s roll before they may “appear and plead” there. Consequently, an advocate who is not enrolled on the roll of a particular High Court does not have a right to “appear and plead” in that Court by default; he must satisfy the conditions prescribed by that Court before he may do so. The Court stressed that, under these rules, foreign advocates who meet the conditions are allowed only to “appear and plead.” There has never been any claim that a foreign advocate could be permitted to “act” in a High Court where he is not an advocate.

The Court observed that the legislature that enacted the Act now before it was fully aware of the internal classification of advocates in the Calcutta and Bombay High Courts into Original-Side and Appellate-Side advocates. The legislature knew that Original-Side advocates in those two High Courts were not allowed to “act” on the Original Side and could only “appear and plead” after being instructed by an attorney, while only attorneys were authorised to “act” on that side. The legislature was also mindful of the bar placed on foreign advocates—advocates not on a High Court’s roll—regarding their ability to “appear and plead” in that Court, and of the historical fact that eminent advocates from one High Court were, on many occasions, not granted permission to “appear and plead” in another High Court. Moreover, the legislature recognised that Order I, rule 2 of the Supreme Court Rules defines an advocate as a person entitled to “appear and plead” before the Supreme Court, and that Order IV, rule 30 expressly forbids an advocate from acting as an agent and an agent from acting as an advocate under any circumstances. Finally, the Court noted that the legislature was aware that a Supreme Court advocate is, by definition, a foreign advocate in every High Court other than the one in which he is enrolled, and therefore does not possess an automatic right to “appear and plead” in those other High Courts.

The Court observed that a Supreme Court advocate was not automatically entitled “to appear and plead” in the various High Courts. Aware of this fact and the surrounding circumstances, the legislature deliberately enacted the present Act. Consequently, the provisions of the Act must be interpreted in light of those prevailing conditions, which unequivocally form the background of the legislation and cannot be ignored or set aside. Turning to the text of the statute, the Court could not help but be struck by the wording of its full title. Although earlier English decisions sometimes treated a statute’s title as extraneous to statutory construction, the current law holds that a title constitutes an important part of an enactment. The title may be consulted to determine the general scope of the statute and to illuminate its construction, provided it does not outweigh the clear meaning of the operative provisions. The full title of the Act under consideration reads: “An Act to authorise Advocates of the Supreme Court to practise as of right in any High Court.” The Court noted the immediate presence of the phrases “as of right” and “in any High Court.” Those two expressions together convey, in the Court’s view, that the legislation is directly concerned with the disability imposed on Supreme Court advocates who are not on the roll of a particular High Court, a disability that required the permission of the Chief Justice and the fulfilment of any other conditions before they could appear and plead. The purpose of the Act, therefore, is to remove and replace that disability by granting Supreme Court advocates an unconditional statutory right to practise in any High Court. The expression “as of right” unmistakably signals an independent statutory entitlement, as opposed to a conditional privilege subject to the discretion of the Chief Justice. By employing this antithetical language, the Act highlights its core objective. Given the well-known inconvenience caused by the earlier restriction, the Court concluded that the title unmistakably indicates the legislature’s intention to bestow on Supreme Court advocates a right that the High Court rules had previously denied them. The language of the title, in the Court’s estimation, serves as a clear and persuasive key to the true meaning and import of the statute. Nonetheless, interpretation does not rest on the title alone; the Court proceeded to examine Section 2 of the Act, which begins with the words: “Notwithstanding anything contained in the Indian…”.

Section 2 of the Bar Councils Act, 1926 (XXXVIII of 1926), is worded in a manner that creates two distinct components within the same provision. The first component is introduced by the expression “Notwithstanding anything contained in the Indian Bar Councils Act, 1926, or in any other law regulating the conditions subject to which a person not entered in the roll of Advocates of a High Court may be permitted to practise in that High Court.” This portion functions as a non-obstante clause, and it continues until the words “permitted to practise in that High Court.” The second component commences with the words “every Advocate of the Supreme Court shall be entitled as of right to practise in any High Court whether or not he is an Advocate of that High Court.” This positive part extends to the words “of that High Court.” In addition, the section contains a proviso that reads, “Provided that nothing in this section shall be deemed to entitle any person merely by reason of his being an Advocate of the Supreme Court to practise in a High Court of which he was at any time a Judge, if he had given an undertaking not to practise therein after ceasing to hold office as such Judge.” Understanding the exact reach of the non-obstante clause therefore becomes essential, because the clause determines the extent to which the rest of the provision overrides existing statutory rules.

The controversy centers on the grammatical relationship between the adjectival phrase “regulating the conditions subject to which a person not entered in the roll of Advocates of a High Court may be permitted to practise in that High Court” and the two nouns that precede it, namely “the Indian Bar Councils Act” and “any other law.” The question is whether the qualifying phrase modifies both of those nouns or only the second one. If the phrase is read as qualifying both “the Indian Bar Councils Act” and “any other law,” then the effect of the non-obstante clause is limited; it would supersede only that portion of the Indian Bar Councils Act which deals with the regulation of conditions for a non-registered person to practise, and it would likewise supersede any other law dealing with the same subject matter. In other words, the clause would not nullify the entire Bar Councils Act, but only the segment that pertains to the regulation of such conditions, to the same extent that the phrase also supersedes “any other law.” The petitioner, Aswini Kumar Ghosh, attempted to argue that the qualifying phrase does not apply to “the Indian Bar Councils Act.” To support this contention, he pointed to the comma that appears after the closing bracket and before the word “or,” asserting that the punctuation indicates a separation between the statute and the qualifying clause. The High Court, however, rejected this argument on two grounds. First, the court held that the comma is not a part of the enacted text of the statute and therefore cannot be used to alter its grammatical construction. The court also referred to the established English jurisprudential view that punctuation marks are not considered substantive elements of legislation, a principle that has been consistently applied by English judges and, by extension, by Indian courts when interpreting statutes.

The Court observed that punctuation does not form part of a statute, a principle first expressed by Willes J. in Claydon v. Green (1). This view was reinforced by Lord Esher, M. R., in Duke of Devonshire v. Connor (2), where he declared that “in an Act of Parliament there are no such things as brackets any more than there are such things as stops.” The same position was adopted by the Privy Council on the construction of Indian statutes, as shown by Lord Hobhouse’s remarks in Maharani of Burdwan v. Murtunjoy Singh (3), stating that it is an error to rely on punctuation when construing legislative enactments. The Privy Council reiterated this principle in Pugh v. Ashutosh Sen (4). The Court added that even if punctuation were treated as a contemporanea expositio, it must be ignored whenever it conflicts with the plain meaning of the provision. When punctuation is senseless or clashes with the ordinary sense of the words, the Court will not permit it to create a meaning that the language otherwise lacks.

Turning to the second ground relied upon by the High Court, the Court examined the petitioner’s contention that the word “other” in the phrase “any other law” isolated the Indian Bar Councils Act from the qualifying adjectival clause. The Court concurred fully with the High Court’s reasoning. If the legislature had intended the adjectival clause not to qualify the Indian Bar Councils Act, the inclusion of the word “other” would have been wholly inappropriate and unnecessary. The presence of that word unmistakably indicates that the adjectival clause also qualifies something besides “other law.” Had the intention been to leave the Indian Bar Councils Act untouched by the qualifying phrase and to supersede it entirely for the purposes of this Act, the statute would have been drafted differently, perhaps using language such as “or in any law regulating the conditions etc.” It would have been simpler still to omit any reference to the Indian Bar Councils Act and to phrase the provision merely as “Notwithstanding anything contained in any law.” Considering the true meaning of the Act’s title and the effect of the word “other,” the Court, without hesitation, agreed with the High Court that the non-obstante clause was not intended to exclude or supersede the whole of the Indian Bar Councils Act.

In this case, the Court observed that the non-obstante clause of the statute under construction was intended to exclude or supersede the Indian Bar Councils Act and any other law only to the extent that the statutes or rules purported to regulate the conditions under which a person who is not entered in the roll of advocates of a High Court might be permitted to practise in that High Court. The Court further held that the comma appearing in the clause must be ignored because it contradicts the plain meaning of the provision. Even if the qualifying clause were not read as attaching to the words “Indian Bar Councils Act,” the Court said that such a construction would not alter the legal position. The Court then set out the relevant provisions of the Indian Bar Councils Act. Section 8(1) states: “No person shall be entitled as of right to practise in any High Court, unless his name is entered in the roll of the advocates of the High Court maintained under this Act: Provided that nothing in this sub-section shall apply to any attorney of the High Court.” Section 14(2) provides: “Where rules have been made by any High Court within the meaning of clause (24) of section 3 of the General Clauses Act, 1897, or in the case of a High Court for which a Bar Council has been constituted under this Act, by such Bar Council under section 15, regulating the conditions subject to which advocates of other High Courts may be permitted to practise in the High Court, such advocates shall not be entitled to practise therein otherwise than subject to such conditions.” Section 15(b) authorises the Bar Council, with prior sanction of the High Court, to make rules to provide for and regulate “the conditions subject to which advocates of other High Courts may be permitted to practise in the High Court.” The Court noted that rules have been framed under this section by both the Calcutta Bar Council and the Bombay Bar Council. These three provisions are the only parts of the Indian Bar Councils Act, or the rules made thereunder, that impose a bar on an advocate not on the roll of a High Court from practising in such High Court. The Court found it significant that the non-obstante clause in section 2 of the statute being interpreted is expressed in language unmistakably drawn from sections 14(2) and 15(b). Consequently, the Court concluded that a supersession of the Indian Bar Councils Act would necessarily supersede those provisions and the rules that regulate the conditions for advocates of other High Courts to practise. Apart from this, the Court found no other provision of the Indian Bar Councils Act that directly impacts section 2 of the statute under review or whose supersession is required to give effect to it.

The Court further observed that the rules of the Calcutta and Bombay High Courts prescribe the qualifications that a person must possess to apply for practice in those Courts and set out the conditions under which such persons will be entitled to practise, reserving to the Courts the right to grant or refuse any application for enrolment. The Court noted that the language of the non-obstante clause mirrors the regulatory language of sections 14(2) and 15(b), and therefore a complete supersession of the Indian Bar Councils Act would eliminate the provisions that “regulate the conditions subject to which advocates of other High Courts may be permitted to practise in the High Court.” The Court affirmed that nothing else in the Indian Bar Councils Act has any direct bearing on section 2 of the statute being construed, and that superseding the Act would not affect any other substantive requirements unrelated to the regulation of cross-High Court practice. Accordingly, the Court held that the appropriate construction of the non-obstante clause was to limit its effect to the specific regulatory provisions and the associated rules, and not to the entire Indian Bar Councils Act.

In this case, the Court observed that the rules of the Calcutta and Bombay High Courts prescribe the conditions under which a person may be entitled to practice and expressly reserve to those Courts the authority to grant or refuse any application for enrolment. The Court further noted that those rules also determine the individuals who are permitted to plead and to act in the original jurisdiction of each High Court. It was pointed out that sections 9(4) and 14(3) of the Indian Bar Councils Act were enacted to preserve the operation of these High Court rules. The petitioners argued that a complete supersession of the Indian Bar Councils Act would eliminate sections 9(4) and 14(3), thereby withdrawing the protection afforded to the rules and causing those rules to be abrogated so that section 2 of the Act under review could operate without restriction. The Court refused to accept that argument as sound. It held that sections 9(4) and 14(3) do not confer any new validity on the Calcutta and Bombay High Court rules; rather, they merely declare that nothing in the Indian Bar Councils Act shall limit or affect the powers of those Courts, which exist independently under their respective Letters Patent.

The Court explained that even if the entire Indian Bar Councils Act, including sections 9(4) and 14(3), were to be abrogated, such abrogation would not affect the existence or validity of the High Court rules because those rules continue to derive their authority from the Letters Patent of each Court. Consequently, the Court concluded that if the non-obstante clause were interpreted to supersede the whole of the Indian Bar Councils Act, the practical effect would be limited to eliminating sections 8(1) and 14(2) and the rule made under section 16(b), which regulate the conditions subject to which advocates from other High Courts may be permitted to practice. All other statutes that regulate those same conditions would also be displaced, but the rules framed by the High Courts under their Letters Patent, which determine who may act, plead, or do both, would remain fully effective. The Court therefore held that the rules governing the conditions for foreign advocates to appear and plead would be abrogated by the non-obstante clause, while the substantive authority of the High Court rules would persist. In this view, the petitioner’s construction that the presence of a comma in the non-obstante clause would alter its meaning was rejected, and the clause was understood to operate only to the extent of superseding provisions that regulate the specified conditions.

The Court observed that the presence of the comma did not alter the meaning of the provision; the effect was identical to the situation where the comma was absent, and the adjectival clause “regulating the conditions etc.” also qualified the term “Indian Bar Councils Act.” Consequently, there was no way to escape the conclusion that the scope and impact of the non-obstante clause were limited to superseding the Indian Bar Councils Act and any other statute only to the extent that those statutes dealt with the conditions described therein. The Court reiterated that the rules of the various High Courts governed the conditions under which a foreign advocate could be permitted “to appear and plead.” The Court noted that there was no issue of a foreign advocate “acting” in a High Court where he was not an advocate. The purpose of the non-obstante clause, the Court said, was to supersede only the provisions of the Indian Bar Councils Act and the rules that regulated those identical conditions. The legislature, in enacting the non-obstante clause, had contemplated only those conditions, and therefore the words “to practise” in the clause meant, in context, “to appear and plead.” The petitioner, Aswini Kumar Ghosh, then relied on a second line of argument. He contended that regardless of the meaning, scope, and effect of the non-obstante clause, it could not diminish the meaning of the positive words in the operative part of the section. He argued that the High Court was wrong in holding that the non-obstante clause was co-extensive with the operative part. While it might be true that the non-obstante clause need not be exactly co-extensive with the operative part, the Court noted that ordinarily there should be a close approximation between the two, a point not disputed by the petitioner and Dr N C Sen Gupta appearing for the Calcutta Bar Association. The petitioner urged that the Court should not create ambiguity in the operative part and then use the non-obstante clause to narrow the plain meaning of the operative words. He maintained that the term “to practise” covered both acting and pleading, and therefore the operative part of the section authorised a Supreme Court advocate, as a matter of right, “to practise,” that is, “to act and plead,” in any High Court. The petitioner’s entire case rested on this plea. Accordingly, the Court considered whether the critical word had a fixed meaning when applied to an advocate. Referring to the Oxford English Dictionary, Vol. VIII, p. 1220, the Court stated that “practise” meant to work at, exercise, or pursue an occupation, profession, or art, and to exercise the profession of law or medicine. A similar definition was found in Dr Annandale’s New Gresham Dictionary, which said that doctors “practise,” consulting architects “practise,” and also lawyers “practise.”

The Court observed that the term “practise” is applied to all persons who belong to the legal profession, yet each category within that profession carries out distinct functions. It noted that lawyers can be divided into several groups, all of whom are described as “practising” law, although they do not all perform identical duties. For example, attorneys who appear before the Original Sides of the Calcutta and Bombay High Courts, and agents who appear before the Supreme Court, are said to “practise” in those forums; however, under the procedural rules of those courts the attorneys and the agents are limited to the function of “acting” only. The Court further explained that advocates also “practise”, but their specific responsibilities differ. Advocates who practice in every High Court, including those who appear before the Appellate Sides of the Calcutta and Bombay High Courts, are authorized by the rules of their respective High Courts to both “act and plead”. Consequently, when the expression “to practise” is applied to those advocates, it unquestionably conveys the meaning “to act and plead”. By contrast, advocates who appear before the Original Sides of the two High Courts may, according to the rules, only “plead”. Since the professional scope of these Original-Side advocates is confined to pleading, the phrase “to practise” in reference to them must be understood as meaning “to plead” alone. The Court therefore identified several “species” of lawyers: (i) attorneys of the Original Sides of the Calcutta and Bombay High Courts and agents of the Supreme Court, who only “act”; (ii) Original-Side advocates of those High Courts and of the Supreme Court, who only “plead”; and (iii) all other advocates of all High Courts, who both “act and plead”. Although the range of professional activities varies among these categories, each is still described as “practising”. The Court held that the word “practise” therefore carries a general, dictionary-defined sense of exercising the legal profession, which applies to the whole class of lawyers, while at the same time it is capable of acquiring a more specific meaning when applied to particular categories or “species” of lawyers, reflecting the distinct professional attributes of each category.

The Court then turned to the Indian Bar Councils Act to illustrate how the expression “to practise” is employed in a generic sense throughout the statute. It cited Section 4, which governs the composition of Bar Councils. Sub-section (1) provides that every Bar Council shall consist of fifteen members, of whom ten shall be elected by advocates. Sub-section (2) states: “Of the elected members of every Bar Council not less than five shall be persons who have for not less than ton years been entitled as of right to practise in the High Court for which the Bar Council has been constituted.” The Court explained that if the ordinary dictionary meaning of “to practise” is applied to this provision, the requirement becomes readily understandable. In other words, the term is used in its broad, generic sense, encompassing all lawyers who are recognised as entitled to engage in the legal profession, regardless of whether their particular role under court rules is limited to acting, pleading, or both. This generic usage ensures that the eligibility condition does not unjustifiably exclude advocates whose professional functions are confined to either “act” or “plead”, but who nonetheless have the right to “practise” law as a matter of statutory definition.

The Court observed that if the phrase “to practise” were interpreted to mean only “to act and plead,” the eligibility for election to the Bar Council would be limited solely to those advocates who, under the applicable rules, are permitted to “act and plead.” Such a construction would confine eligibility to the Appellate Side advocates. Consequently, advocates belonging to the Original Side of the Calcutta and Bombay High Courts, even though they possessed ten years’ standing, would be excluded from election because, according to the rules, those Original Side advocates neither do nor can “act and plead.” The Court held that this result could not be intended. Therefore, the Court concluded that the words “to practise” in the relevant sub-section must be understood in their generic sense, even though the expression conveys different professional attributes when applied to the various categories of advocates covered by the sub-section. The Court then turned to sub-section (3) of the same provision, which reads: “Of the elected members of the Bar Councils to be constituted for the High Courts of Judicature at Fort William in Bengal and at Bombay, such proportion as the High Court may direct in each case shall be persons who, for such minimum period as the High Court may determine, have been entitled to practice in the High Court in the exercise of its original jurisdiction, and such number as may be fixed by the High Court out of the said proportion shall be barristers of England or Ireland or members of the Faculty of Advocates in Scotland.” The Court explained that if the ordinary dictionary meaning of “to practise” were applied, the sub-section would be readily understandable. However, interpreting the words to mean “to act and plead” would render the sub-section meaningless, because the provision refers solely to the practice of Original Side advocates, who, under the rules, cannot “act” on the Original Side at all. Accordingly, the Court found that the expression “to practise” in both sub-sections is used in its generic, dictionary meaning of “to exercise one’s profession,” while its application to different categories of advocates yields distinct professional attributes. Thus, in sub-section (3), which applies only to Original Side advocates, “to practise” effectively means “to plead,” whereas in sub-section (2), which applies to all categories of advocates, the term carries two senses: for advocates other than Original Side advocates it means “to act and plead,” and for Original Side advocates it means only “to plead.” The Court noted that the same observation applies to section 5(1). It further warned that relying on a principle that a word must retain a uniform meaning throughout the Act would be futile, because the context of each provision dictates a nuanced interpretation. Finally, the Court referred to section 8(2) of the Indian Bar Councils Act, which provides that the High Court shall prepare and maintain a roll of advocates of the High Court, in which shall be entered the names of “(a) all persons who were, as…” and continued the analysis from there.

The provision lists “advocates, vakils or pleaders, entitled as of right to practise in the High Court immediately before the date which this section comes into force in respect thereof.” If the words “to practise” in clause (a) were not given their ordinary dictionary meaning but were instead read as meaning only “to act and plead,” then advocates who merely plead the Original Sides of the Calcutta and Bombay High Courts would not have their names entered in the rolls kept by those High Courts under this section. Such an exclusion would be contrary to the purpose of the subsection. Consequently, in this subsection the expression “to practise” must be understood to mean “to exercise their profession.” The same interpretation applies to the proviso to section 8(3)(b). The Court then examined section 14, which provides, inter alia, that “(1) An Advocate shall be entitled as of right to practise… (9) subject to the provisions of sub-section (4) of section 9, in the High Court of which he is an Advocate.” By the terms of sub-section (3), nothing in section 14 is to be taken as limiting or affecting the power of the Calcutta and Bombay High Courts to make rules deciding who may plead and who may act for the Original Sides of those Courts. Both High Courts have issued rules under which an Original Side advocate may only “plead,” while the function of “acting” is reserved exclusively for attorneys. In this context the Court asked what the words “to practise” mean in sub-section (1). If the ordinary dictionary meaning—“to exercise his profession”—is adopted, the provision is clear, coherent and workable. However, if “to practise” is confined to “to act and plead,” then Original Side advocates who do not “act” but only “plead” would fall outside the scope of the section and would be unable to claim the protection afforded by section 14(1)(a). The Court rejected the notion that the section could be interpreted to protect only those advocates who are not Original Side advocates, thereby denying Original Side advocates the right to “plead” in the High Court where they are enrolled. The fact that the right is subject to the provisions of section 9(4) and that the rule-making authority of the two High Courts remains unaffected by section 14(3) demonstrates that Original Side advocates, even though they cannot act, are intended to be included within the term “advocate” used in sub-section (1). Accordingly, if the legislation is to afford any security to Original Side advocates, just as it does to Appellate Side advocates, the words “to practise” must be read in their ordinary dictionary sense—namely, “to exercise his profession.” The Court concluded that the expression “to practise” has been employed throughout the Act in its generic, dictionary meaning, except where expressly limited elsewhere.

The Court observed that the term “practising” as used in the Indian Bar Councils Act was intended to be understood in its ordinary dictionary sense, except for the specific limitation found at the conclusion of section 9 (4). In a similar manner, the Court noted that the word “practising” appeared in Order IV, rule 31 of the Supreme Court Rules and, when applied to advocates of the Supreme Court, it carried the generic meaning of appearing and pleading before the Court. The Court further explained that the very next rule employed the same term in its dictionary meaning, and because that rule related to agents of the Court, the term was to be understood as “acting.” By giving the word “practise” this broad, generic meaning, the Court held that section 4 of the Legal Practitioners Act, 1879 became readily understandable and operative.

Turning to the petitioner’s arguments, the Court recorded that Aswini Kumar Ghosh relied upon article 220 of the Constitution. He pointed out that the text of the article prohibited judges from “pleading or acting,” while the marginal note described the subject-matter as a “prohibition of practising” and interpreted “to practise” to mean “to act and plead.” The Court, agreeing with the High Court, stated that it could not accept this line of reasoning. Even if the marginal note were considered, the Court explained, the note merely reflected the drafter’s view that a single word could summarize both acting and pleading. No authority disputed that “to practise” might denote “to plead or act” in a particular context, but the Court emphasized that this meaning was not automatic or universal.

The Court also observed that, as the High Court had indicated, the drafter of the marginal note sought a term that would encompass both functions without drawing a precise technical distinction between them. Moreover, the Court found that entry 78 of List I in the Seventh Schedule did not lend any support to the petitioner’s contentions. The petitioner then cited the decision in Laurentius Ekka v. Dhuk Koeri (1925) I.L.R. 4 Pat. 766 to argue that the judicially accepted meaning of “to practise” was “to appear, act and plead.” The Court recounted the facts of that case, noting that the issue was whether an advocate on the roll of the Patna High Court could present and move a review petition in a subordinate court without filing a vakalatnama or being instructed by a pleader. The Court affirmed that an advocate of the High Court, unlike a pleader, did not require a written appointment to act for his client; even a verbal appointment sufficed for the advocate to appear, plead, and act under Order III, rule 1 of the Code of Civil Procedure. Consequently, the Court concluded that section 4 of the Legal Practitioners Act, 1879, which entitled every person entered as an advocate or vakil of any High Court under the Letters Patent to “practise” in all courts subordinate to that High Court, was correctly interpreted in light of this principle.

In this case, the Court explained that the term “practise” when applied to an advocate of the Patna High Court signified the three actions of appearing, pleading and acting. The Court observed that the decision’s ratio was clear: the professional scope of a Patna High Court advocate encompassed both acting and pleading, and when such an advocate received the authority to “practise” in a subordinate court, he was consequently authorised to exercise his full professional capacity in that lower forum, that is, to both act and plead there. The Court further noted that the advocate retained the essential attributes of his profession even when he proceeded to perform those duties in a lower court. However, the Court cautioned that this judgment did not establish a universal rule that the words “to practise” possessed a fixed and unchanging meaning limited to acting and pleading in every circumstance.

The petitioner, Aswini Kumar Ghosh, then referred the Court to the decision in In re Powers of Advocates. In that Madras case, the High Court, exercising its authority under clause 9 of its Letters Patent, had framed a rule that empowered advocates to appear, act and plead on the Original Side. The Court stated that this rule had previously been upheld as valid in two earlier decisions. By contrast, Rules 128 and 129 of the Insolvency Rules allowed an advocate only to “appear and plead” in the Insolvency jurisdiction, reserving the power to act for an attorney. The question that arose was whether advocates enrolled under the Indian Bar Councils Act 1926 were entitled to “act” in the Insolvency jurisdiction of the Madras High Court, even though the High Court’s own rules limited them to merely “plead.” The Full Bench answered this question affirmatively.

The Court described the reasoning behind that answer as follows: because the general ambit of a Madras High Court advocate’s profession, according to the rule, was to “appear, act and plead” on the Original Side, the phrase “to practise” used in section 8(1) and section 14(1) of the Indian Bar Councils Act must, for such an advocate, be interpreted to mean “to appear, act and plead.” Nevertheless, Rules 128 and 129 expressly permitted only appearance and pleading, not acting. Moreover, unlike the Calcutta and Bombay High Courts, the Madras High Court did not possess a statutory saving provision such as section 9(4) or section 14(3). Consequently, the insolvency rules conflicted with sections 8(1) and 14(1) as construed by the Full Bench, and under section 19(2) those rules should be regarded as repealed.

The Court expressed its disagreement with that line of reasoning. It observed that the combined effect of the two sets of rules was that a Madras advocate was authorised to act and plead throughout the Original Side except in the Insolvency Court, which itself formed part of the Original Side. Therefore, it was inaccurate to state that a Madras advocate was entitled to act and plead on the Entire Original Side. The Court referred to the passage in the judgment of Kumaraswami Sastri J. as part of this analysis.

The Court observed that the passage on page 103, which stated that “the word ‘practise’ ordinarily means ‘appear, act and plead’, unless there is anything in the subject or context to limit its meaning,” was not supported by any authority and was, in the Court’s view, overly expansive. The learned Judge himself had recognized this limitation, for throughout the judgment it was stressed that when the term “practise” was applied to a Madras Advocate it meant “to appear, act and plead.” The Court noted that, according to that judgment, the learned Judge did not intend the expression to have such a broad meaning when it was applied to Original Side Advocates of the Calcutta and Bombay High Courts. Consequently, the Court held that the passage should, in its proper context, be confined to Madras High Court advocates and to advocates of other High Courts who, under their respective rules, are permitted to both act and plead. The Court could not accept that the passage applied to an Original Side advocate who is authorised only to plead. Moreover, the Court concluded that the passage in the Madras decision could not have been meant as a definitive list of the professional activities that constitute “to practise,” nor could it be read as an expression of a universal, fixed meaning. In India, there exists a historical division of legal practitioners into three distinct categories: those who only act, those who only plead, and those who both act and plead. Because of this three-fold classification, a single definition encompassing all categories would be wholly inaccurate. Accordingly, the Court affirmed that the generic meaning of “to practise” should be understood as the broader sense previously mentioned.

The Court further agreed with the High Court that the petitioner could not derive any support for his contention from either of the two cited decisions. The Court also considered the Canadian case of The Queen v Doutre (1883), where it was held that, because the functions of barristers and solicitors are combined in a single person, the English rule precluding a barrister from suing for his fees does not apply, and a Quebec advocate may sue for remuneration on a quantum-meruit basis. The Court found that this foreign authority did not illuminate the issue before it, since in Canada all advocates both act and plead, a circumstance that does not help in interpreting the meaning of the words in Indian statutes where a clear three-category division of legal practitioners exists. The Court therefore concluded that, with respect to lawyers as a class, the words “to practise” mean “to exercise their profession,” which is the dictionary definition and is sufficiently wide to encompass the activities of the entire genus of lawyers. The Court characterized the terms as words of indeterminate import, having no fixed connotation or content, and held that their meaning must be ascertained by reference to the subject and context in which they are used, particularly when applied to specific species or categories of lawyers.

In explaining the meaning of the expression “to practise” as it applies to lawyers, the Court observed that such a phrase does not have a single fixed definition. The significance of the words varies depending on the particular category or “species” of legal professional to which they refer, and the appropriate meaning must be determined by examining the subject matter or context in which the expression occurs. The Court further noted that the legislative drafting style evident in statutes such as the Indian Bar Councils Act, the Legal Practitioners Act, and the Rules of the Supreme Court demonstrates a tendency to employ these neutral terms in a broad, generic sense. However, when the same terms are applied to specific categories or species of lawyers, they acquire distinct connotations that must be ascertained from the surrounding context. Consequently, the Court posed the central question for consideration: within the true construction of the Act presently before it, what is the meaning of the words “to practise”?

The petitioner, Aswini Kumar Ghosh, contended that the phrase “to practise,” when read in relation to all advocates of the twenty High Courts except for the Original Side advocates of the Calcutta and Bombay High Courts, should be understood to mean “to act and plead.” He argued that because this interpretation applies to the overwhelming majority of advocates, the expression ought to be given that meaning. The petitioner further asked whether the rule of majority should guide statutory construction, and whether it could be presumed that the Legislature had either overlooked or deliberately ignored the historical fact that a substantial group of advocates—namely, those who only “plead” on the Original Side of the two premier High Courts—also “practise.” He questioned whether the Legislature, by employing an expression of indefinite import, had intended to sweep away an entire class of legal practitioners, namely the attorneys of those two High Courts. The Court found no indication in the Act of such an intention. On the contrary, both the title of the Act and the non-obstante clause in section 2 run counter to that contention. The Court had already pointed out that in the non-obstante clause the words “to practise” were used in the sense of “appearing and pleading” only, and that it was evident that the Legislature, when drafting that clause, had in mind the provisions of the Indian Bar Councils Act and the High Court rules governing the conditions under which a foreign advocate could be permitted “to appear and plead” before a High Court of which he was not a member. From this, the Court held it legitimate to infer that the Legislature, in the operative part of the section, gave effect to the same meaning it had intended in the non-obstante clause. If the Legislature had intended a different meaning, the Court asked why it did not state openly and plainly that it granted Supreme Court advocates the right “to act and plead” in any High Court, and why it resorted to the ambiguous phrase “to practise.” The Court concluded that it was not correct to assert that the expression had been used in the Indian Bar Councils Act solely in the sense of “acting and pleading.”

The Court observed that the expression “to practise” had been employed in the Indian Bar Councils Act solely in the sense of “acting and pleading.” It explained that, in ordinary dictionary usage, “to practise” means “to exercise one’s profession,” a wording that is intended to encompass the entire class of advocates, even though the term may acquire different nuances when applied to various categories or species of legal practitioners. Because the customary legislative approach is to use the phrase in its broad, dictionary sense, there is no reason to presume that the Legislature intended to deviate from this practice when drafting the present statute. The Court noted the question raised as to why the Legislature did not incorporate a saving clause comparable to sections 9(4) and 14(3) of the Indian Bar Councils Act. The argument presented was that the omission of such a saving provision signified a departure from established legislative practice, thereby requiring the phrase “to practise” in the operative part of section 2 to be given its widest possible meaning. The Court found this line of reasoning unsound. It explained that the rule-making authority granted to High Courts under clause 9 of the Letters Patent pertains exclusively to advocates, vakils and attorneys who have been admitted and enrolled by the High Courts themselves. The Indian Bar Councils Act dealt with advocates enrolled by the High Courts, and consequently it was deemed prudent to insert a saving provision stating that nothing in that Act should affect or limit the High Courts’ rule-making powers. If the critical words were indeed intended in a generic sense, such saving clauses would have been inserted as a precautionary measure.

The Court further explained that, although the High Courts’ power to make rules under clause 9 extended only to the advocates, vakils and attorneys enrolled by them, and the Indian Bar Councils Act also concerned those same High Court-enrolled advocates, the inclusion of a saving clause in that Act is understandable. However, inserting a saving of the High Courts’ rule-making authority over their own advocates would be entirely inappropriate in legislation that concerns solely Supreme Court advocates. The High Courts possess no authority under clause 9 of the Letters Patent to regulate the conduct or activities of Supreme Court advocates, and the present Act addresses only Supreme Court advocates while conferring upon them a new right. Consequently, a saving clause preserving the High Courts’ rule-making power over their advocates would be meaningless and misplaced, as it would not grant the High Courts any jurisdiction to frame rules concerning Supreme Court advocates. Accordingly, there was no necessity or occasion to add any saving provision analogous to sections 9(4) and 14(3) of the Indian Bar Councils Act, and the absence of such a clause cannot be used to infer any broader legislative intent.

In this case, the Court recorded that the petitioner, Aswini Kumar Ghosh, contended that the original Bill, its statement of objects and reasons signed by the Law Minister, and the legislative debates that led to the deletion of clause (a) of the proviso demonstrated the Legislature’s intended meaning. He explained that the Bill, when first introduced, contained a proviso to section 2 stating: “Provided that nothing in this section shall be deemed to entitle any person, merely by reason of his being an Advocate of the Supreme Court—(a) to plead or to act in any High Court in the exercise of its original jurisdiction; or (b) to practise in a High Court of which he was at any time a Judge, if he had given an undertaking not to practise therein after ceasing to hold office as such Judge.” The petitioner argued that the objects and reasons made clear that the purpose was to prevent section 2 from affecting the original jurisdiction of the two High Courts, and that clause (a) had been inserted specifically to achieve that purpose. He further asserted that, without clause (a), section 2 would have permitted a Supreme Court advocate to “practice,” meaning to appear, act and plead, in every High Court across all their jurisdictions, and that the phrase “to practise” was expressly intended to be synonymous with “to act and plead.”

The Court observed that, despite the apparent force of the petitioner’s argument, the reasoning was ultimately without merit. It cited the established principle that proceedings of the Legislative Council are excluded from judicial construction of statutes, referencing Administrator-General of Bengal v. Prom Lal (1). The Court also noted the Privy Council’s view in Krishna Ayyangar v. Nella Perumal (2) that statements made at the introduction or discussion of a measure do not guide the interpretation of its language. Moreover, the Court recalled the decision in A. E. Gopalan v. The State of Madras [1950] S.C.R. 88 (3), emphasizing that debates and speeches in the Legislature reflect individual opinions and therefore cannot be employed to construe the final Act. Consequently, the Court held that the objects and reasons attached to the Bill, while indicating the sponsor’s subjective intention, do not illuminate the collective intent of the Legislature when the Bill became law.

In this case the court observed that the objects and reasons attached to a Bill merely reflect the purpose envisioned by the Bill’s sponsor and do not illuminate the purpose that the Legislature as a whole had when enacting the law. The court quoted the Chief Justice’s language, noting that such objects and reasons may at most indicate the subjective intention of the Law Minister who introduced the Bill, but they cannot express the collective mental processes behind the majority vote that carried the Bill. The court further stated that it was unreasonable to assume that all legislators shared the same view. Earlier decisions of the Privy Council, as well as the decision of M. N. Mukherji J. in Debendra Narain Roy v. Jogendra Narain Deb, had rejected any reference to debates or to the objects and reasons. Reference was also made to Craies’ Interpretation of Statutes, 5th edition, page 123, concerning memoranda attached to a Bill. Consequently the court preferred to follow the traditional English approach and exclude the objects and reasons from consideration.

The petitioner, Aswini Kumar Ghosh, contended that in Gopalan’s case the Supreme Court had examined the original draft that later became article 21 of the Constitution and had drawn useful light for construction, and therefore the original Bill and the omission of clause (a) of the proviso should be examined. The court explained that what had been examined in that earlier case was the Report of the Drafting Committee appointed by the Constituent Assembly. That report functioned like a select-committee report prepared after the Legislature referred a Bill to it for consideration. The Drafting Committee had recommended substituting the phrase “except according to procedure established by law” taken from the Japanese Constitution for the words “without due process of law” that appeared in the original draft, because the former expression was more specific (1936) A.I. R. 1936 Cal. 593 at p. 619. The committee further clarified that it had endeavoured to make the fundamental rights and their necessary limitations as definite as possible, anticipating judicial interpretation. The Constitution that was eventually adopted showed that the Constituent Assembly accepted the amendment suggested by the Drafting Committee. The court noted that, since the Drafting Committee acted as an agent of the Constituent Assembly and its amendment was adopted, one might infer that the reasons given by the Committee were also accepted by the Assembly, and that the agent’s intention reflected the principal’s intention. This line of reasoning, however, was not applied to the present case.

The Court explained that the principal reason the majority of judges previously held that the Report of the Drafting Committee could be consulted was that it served as historical material which could illuminate the question of how article 21 should be constructed. The Court stressed, however, that this underlying reasoning was not applicable to the matter before it. Consistent with the principles laid down in a large number of earlier judicial decisions, the Court held that reference could not be made to the debates that took place in the Legislature when interpreting the Act. The Court reasoned that allowing such debates would permit consideration of the thoughts of a vocal minority of legislators, the intentions that motivated particular amendments, and the text of the original Bill – especially where certain words or clauses of that Bill failed to appear in the final Act – in order to infer the mindset of the members who passed the legislation. In the Court’s view, this approach would involve a mental process that the judges who had previously examined the admissibility of the Drafting Committee’s Report could not endorse. Accordingly, the Court affirmed the earlier view and declined to extend that principle so far as to permit a reference to the original Bill. While acknowledging that the reasoning in Gopalan’s case concerning the admissibility of the Report as an aid to construction might, in some circumstances, be relevant to the original Bill, the Court indicated that it had yet to decide whether the original Bill should be consulted in the present case.

The Court then turned to the observations made in Gopalan’s case, where Chief Justice Kania, at page 110, stated that the Report may be read not to control the meaning of the constitutional articles but may be consulted in the event of ambiguity. At page 111, the learned Chief Justice added that such sources may be resorted to only with great caution and solely when latent ambiguities need to be resolved. The Court noted that, in fact, the Chief Justice did not regard the wording of article 21 as ambiguous, and therefore saw no need to refer to the Drafting Committee’s Report to ascertain the Constituent Assembly’s intention. Nevertheless, the present Chief Justice, together with Justices Fazl Ali and Mukherjea, did refer to the Report. Justice Mahajan, however, expressed that he saw no necessity to voice an opinion on this specific issue. The Court itself did not refer to the legislative debates nor to the Drafting Committee’s Report, and at pages 297 and 323 it expressly stated that it would not express any opinion on the admissibility of the Report or the debates. From the passages quoted and from the judgment of the late Chief Justice, it was clear that the Report of the Drafting Committee could be consulted only to resolve ambiguity and could not be used to dictate the meaning of the article when the provision was otherwise clear.

The Court observed that the Constitution’s meaning should be derived primarily from the wording employed by the Assembly, as indicated in the cited report. It first posed the question whether any uncertainty existed in section 2 of the present Act that would compel a reference to the original Bill for clarification. The Court then noted the legal position that prevailed before the Act’s enactment: under the procedural rules of every High Court, a lawyer admitted to one High Court could only appear and plead in another High Court after obtaining the permission of the Chief Justice of that court. This rule gave rise to a difficulty, because even distinguished advocates were occasionally denied such permission without any apparent justification. The Court recognized that the purpose of the Act, as reflected in its long title and the non-obstante clause contained in section 2, was unmistakably to correct this defect. Regarding advocates of the Supreme Court, the Court instructed that all relevant circumstances must be considered in construing the legislation, referring to the principle laid down in Heydon’s case (1) and to the legislative habit of employing the term “to practise” in its ordinary dictionary sense, which had already been explained. Consequently, the Court found no ambiguity whatsoever in the operative portion of section 2; the meaning and intent of the provision appeared reasonably clear, and it was unnecessary to consult the original Bill to determine the sense of the words used. The Court warned against fabricating an ambiguity and then invoking the original Bill to speculate about legislative intent. Even assuming that the original Bill ought to be examined, the Court declined to derive any assistance from the mere fact that clause (a) of the proviso, present in the original Bill, was omitted from the final Act. The omission of that proviso does not, by any means, validate the petitioner’s construction of the section. The Court further observed that there is no basis to presume that the legislators understood the phrase “to practise” to signify “to appear, act and plead.” If the legislators intended the words to mean only “to appear and plead,” which aligns with the scope of a Supreme Court advocate’s functions and corresponds to the rights of the Original Side advocates of the Calcutta and Bombay High Courts under existing rules, then the proviso, which sought to limit the application of the section to “acting” on behalf of the Original Side, would have been unnecessary and could legitimately have been excluded from the enacted statute.

In this case, the Court noted that if the legislative purpose was to give Supreme Court advocates only the right to appear and plead in any High Court within its jurisdictions, then a proviso that attempted to prevent the extension of the section to pleading on the Original Side of the Calcutta and Bombay High Courts could not be retained. Consequently, if the operative part of the section was intended to confer on a Supreme Court advocate merely the right “to appear and plead”, a right that matches both the functions of a Supreme Court advocate and the rights of Original Side advocates of those two High Courts under their rules, the proviso had to be removed in its entirety, and no argument could be based on the fact that it was deleted. The Court therefore held that the operative part of the section must be interpreted by looking primarily at the intention evident from the language of the section itself and from other provisions of the Act. The Legislature that enacted the statute was fully aware of the prevailing law embodied in the rules of various High Courts, which prevented an advocate of one High Court, as of right, from “appearing and pleading” in another High Court where he was not enrolled. The frequent refusal of permission by Chief Justices, rooted in the lack of reciprocity among High Courts, was a well-known mischief. The Act was expressly designed to remedy that mischief, as shown by its full title and the non-obstante clause in section 2, as previously explained. The Legislature also knew that, under Order 1 rule 2 of the Supreme Court Rules, an advocate was defined as a person entitled only “to appear and plead” before the Supreme Court; that under Order IV rule 11 no person could appear as an advocate without being instructed by an agent; and that under Order IV rule 30 such an advocate could never “act” as an agent. In short, the Legislature recognized that the scope of the Supreme Court advocate’s profession was limited to “to appear and plead”. With that understanding, the Legislature enacted section 2 to authorize every Supreme Court advocate “to practise as of right in any High Court”. Applying the ordinary dictionary meaning of the word “practise”, the provision authorizes every Supreme Court advocate “to exercise his profession as of right in any High Court”. Because the professional scope of a Supreme Court advocate is confined to “to appear and plead”, it follows inevitably that the section authorizes the Supreme Court advocate only “to appear and plead” in any High Court. The Court observed that this reasoning is the same as that applied in the Patna case mentioned earlier. In that case, an advocate of the Patna High Court, who under its rules was entitled “to appear, act and plead” in that High Court, was held under section 4 of

The Court observed that, under the Legal Practitioners Act, the expression “to practise” was given a meaning that depended upon the professional scope granted to an advocate by the rule of the court in which he sought to appear. In the Patna case, the Court had held that when the Act authorised a Patna High Court advocate “to practise” in a subordinate court, the term necessarily encompassed the same activities the advocate could perform in the High Court, namely “to appear, act and plead”. The Court explained that this interpretation was not based on a claim that the words “to practise” possessed a fixed, immutable meaning. Rather, their meaning varied according to the ambit and scope of the particular advocate’s profession. Applying the same line of reasoning, the Court noted that a Supreme Court advocate is entitled only “to appear and plead”. Consequently, when section 2 of the Act authorises such an advocate “to practise” in any High Court, the term must be read to mean that the advocate is authorised to do in the High Court only what he is entitled to do in the Supreme Court – that is, only to appear and plead. The Court described this construction as logical and as serving the purpose of the statute, because it brings the non-obstante clause into close alignment with the operative part of the section, which is the goal of a well-drafted statute.

The Court then addressed the practical question of how a Supreme Court advocate, who can appear and plead only when instructed by an agent, could fulfil that role in a High Court where no Supreme Court agents exist. It rejected a narrow interpretation that would prevent such practice. The Court held that, while the Supreme Court advocate’s professional powers remain confined to appearing and pleading, the advocate must also be subject to the procedural rules of the High Court that regulate advocates whose authority is likewise limited to appearing and pleading. Since each High Court has persons who are authorised “to act” and who may instruct other advocates, there is no practical obstacle to a Supreme Court advocate appearing and pleading in that forum. The Court cited rule 38 of Chapter I of the Calcutta Original Side Rules, which permits a barrister advocate from any other High Court, or an original-side advocate from Bombay, to appear and plead in the Calcutta High Court’s Original Side with the Chief Justice’s permission, without the need for an accompanying instructing advocate from the advocate’s home court. Likewise, an original-side advocate of Calcutta can be instructed by an attorney of the Calcutta Original Side without difficulty. The same principle applies when an original-side advocate of Calcutta or Bombay appears before the other High Court; the advocate is instructed by a local attorney, not by one from his own jurisdiction. Thus, the Court concluded that the statutory construction allowing Supreme Court advocates to practise in High Courts is workable, while the alternative construction proposed by the petitioners would lead to a chaotic and unregulated situation.

In this matter, the Court observed that an advocate who appears and pleads in the Original Side of the Bombay High Court does so under Chapter I, rule 6 of the Bombay Rules, and such an advocate does not travel with a Calcutta attorney but is adequately instructed by a Bombay attorney. The Court further noted that an Original Side advocate of either the Calcutta or Bombay High Court, who ordinarily would be unable to appear in the Original Side without instruction from an attorney, is nevertheless able to appear and plead in the Appellate Side when instructed by an advocate who is entitled to act in that Appellate Side and can direct the Original Side advocate to appear and plead. The Court explained that if this construction is adopted, the Act becomes workable; however, if the construction proposed by the petitioner is adopted, Supreme Court advocates practicing in High Courts by virtue of the Act would become freelance practitioners, thereby creating chaos and confusion, a point the Court said it would explain in greater detail later. In the Court’s view, the petitioners’ objection lacks any substantive basis. The Court also addressed a further objection that the proposed construction would render the new right illusory because a Supreme Court advocate would not be entitled to “act” even in the Appellate Side of a High Court where he is not enrolled, and that such a result would be contrary to the principle of unifying the Indian Bar. The Court held that this objection rests on the assumption that the Act intends to produce such a drastic and far-reaching outcome, an assumption for which no authority could be found. The Court recalled that the controversy centred on the fact that an advocate on the roll of one High Court could not, as of right, “appear and plead” in other High Courts but had to obtain the permission of the Chief Justice of the other court, permission that was often withheld even to eminent advocates. The Court emphasized that advocates rarely claimed the right to “act” as advocates of another High Court where they were not on the roll. Accordingly, the Court interpreted the limited objective of the Act, as evident from its full title and the non-obstante clause, to be the remedy of this specific defect by granting a Supreme Court advocate the right, as of right, to “practice”—that is, to exercise his profession and to “appear and plead”—in any High Court even though he is not on that court’s roll. The Court regarded this development as an important step toward uniformity in the Indian Bar, creating a category of advocates who could appear and plead in courts throughout India and thereby form the nucleus of an all-India Bar. The Court concluded that the Act was not intended to go beyond this purpose, and that a construction permitting a Supreme Court advocate who is also enrolled in a particular High Court, such as the High Court of Travancore-Cochin in the south, to “act” in the Original Sides of the Calcutta or Bombay High Courts would create confusion and should therefore be rejected.

In this case the Court observed that allowing a Supreme Court advocate who is enrolled in a northern High Court, popularly called Pepsu, to “act” before the Original Sides of the Calcutta or Bombay High Courts would create great confusion, because advocates of those High Courts are not permitted to appear before their Original Sides. The Court therefore found that this possibility, which the petitioners sought to endorse, had to be rejected in favor of an interpretation that would avoid practical inconvenience. The Court also noted that the construction favored by the petitioners would produce a perfect alignment between the non-obstante clause and the operative portion of section 2 by granting only “foreign” Supreme Court advocates the right to appear and plead in any High Court as of right. However, that construction conflicted with the concluding words of the operative part of section 2, namely the phrase “whether or not he is an Advocate of that High Court.” The petitioners argued that those words clearly indicated that the provision intended to give a Supreme Court advocate the right to practice not only in a High Court where he was not enrolled, but also to confer some right concerning his own High Court. The Court below had held that the words “whether or not” were not precisely appropriate and that the intention was to grant every Supreme Court advocate the right to practice in any High Court even if he was not an advocate of that particular High Court. In other words, the Act itself confers a statutory right on a Supreme Court advocate to practice as of right in any High Court, making it immaterial whether he is or is not an advocate of that specific High Court. The Court expressed agreement with this view but decided to test its soundness by examining the strength of the words “whether or not.” As an illustration, the Court considered an advocate enrolled in the Madras High Court. Under the Madras High Court rules, that advocate is entitled to appear, act and plead throughout all its jurisdictions. When the same advocate also enrolls as a Supreme Court advocate, section 2 of the Act, as interpreted by the petitioners, would give him no additional right in relation to his own High Court, because he already possesses the right to appear, act and plead there. The same situation obtains for advocates of all High Courts, except for the High Courts of Calcutta and Bombay, concerning their right to practice in their respective High Courts. Since advocates of the eighteen High Courts did not receive any new right in their own courts, the Court concluded that it cannot be reasonably said that the object of the Act was to grant any additional right to an advocate of a particular High Court concerning his own High Court. The Court further noted that an advocate enrolled

In this case the Court observed that advocates who belong to the Appellate Side of the Bombay and Calcutta High Courts do not, by default, possess the right to appear, act, or plead in the Original Side of those Courts, and that the purpose of the Act was to grant those particular Appellate Side advocates certain additional rights in the Original Side of their own High Courts. The Court noted that, because the Act does not accord any extra right to the advocates of any of the eighteen High Courts with respect to their own High Courts, it is difficult to imagine that the Act’s intention was to confer special favour exclusively on the advocates of the Appellate Sides of the Calcutta and Bombay High Courts. Consequently, the Court concluded that the words “whether or not etc.” must be read in the context of the Act’s purpose, as indicated by its full title and the non-obstante clause, and that these words merely emphasize that the object of the Act was to give a Supreme Court advocate a statutory right to practise in any High Court where he is not already enrolled, irrespective of any other rights he may possess. The Court described this as a new right created by the Act, by its own force, for a class of foreign advocates. Moreover, even if the phrase “whether or not etc.” were interpreted to mean that the Act intended to grant a special right to an Appellate Side advocate of the Calcutta and Bombay High Courts concerning his own High Court, that interpretation does not automatically require that the term “to practise” be given a broad meaning that also includes acting. If the term “to practise” is understood as covering only appearing and pleading, then, even under that limited interpretation, the Appellate Side advocates of the Calcutta and Bombay High Courts would gain an additional right in their own High Courts: by virtue of their status as Supreme Court advocates they would become entitled, without having to comply with the specific procedural requirements of those High Courts, to appear and plead in the Original Side. In this view, the concluding words “whether or not etc.” do not alter the Court’s construction of the operative part of the section. The Court also indicated that, even if this line of reasoning proved to be incorrect, the petitioner would still need to confront an alternative construction that has been accepted by the learned judges of the High Court and by Justice Mukherjea, a construction that the Court is prepared to regard as a credible alternative. The Act authorises every Supreme Court advocate, as of right, “to practise” in any High Court. The expression “to practise” concerning an advocate clearly signifies that the advocate is to exercise the profession of an advocate. To exercise that profession in a High Court necessarily involves complying with the rules of practice of that particular High Court. The respondent contended that

In this case the Court explained that the interpretation advanced by the petitioner would effectively insert additional wording into the statutory provision, such as the phrases “as an advocate of that Court” or “according to the rules of that Court.” The Court held that this view was based on a clear misunderstanding because no new words were being added; instead, the Court was simply giving effect to the meaning that was already implicit in the section as written. In other words, the Court was construing the language of the provision in order to determine its true meaning and significance. The Court pointed out that the implication of allowing a Supreme Court advocate to practice in any High Court necessarily meant that the advocate became entitled to do everything that a regular advocate of that High Court could do, subject to the practice rules of that Court. Consequently, when a Supreme Court advocate appeared before the Appellate Side, he would be entitled to act and plead in the same manner as an Appellate Side advocate, and when he appeared before the Original Side, he would plead in the manner customary to an Original Side advocate, always complying with the applicable rules because he was practising as an advocate of that particular High Court. The Court observed that no one had ever suggested that a lawyer authorized to practice in subordinate courts or in another High Court under section 4 of the Legal Practitioners Act was not bound by the rules of the Court where he chose to practise. It was further argued that the rules of a High Court to which the Supreme Court advocate was not a member could not apply to him when he exercised the right granted by the Act, on the basis that those rules applied only to the advocates of that High Court. The Court rejected this narrow view, stating that the practice rules of a High Court unquestionably applied to any advocate entitled to practice there. When the statute invested a non-member advocate with the right to practice in a particular High Court, that advocate, for all intents and purposes, became a statutory advocate of that Court, thereby acquiring both the rights and the obligations of a regular advocate of that Court. In other words, the Act itself made the advocate a person entitled to practice in that Court and consequently subject to all the rules governing the practice of persons entitled to practice there, except for any rule that directly conflicted with the newly created statutory right, which would then be considered inoperative with respect to that advocate. The Court emphasized that a Supreme Court advocate could not practice in a vacuum. Accepting the petitioner’s contention would mean that the entire body of Supreme Court advocates were released to practice, that is, to act and plead, in every High Court without being subject to any practice rules, a proposition the Court found untenable and rejected.

In this case, the Court observed that the suggestion that a Supreme Court advocate could plead in every High Court without being subject to any rules of practice must be rejected. The Court explained that accepting such a proposition would create serious hazards, generate considerable practical inconvenience, and lead to considerable confusion. If the view were allowed, a Supreme Court advocate would be free to enter and leave a High Court in any attire he chose, would be able to disregard the established rules of precedence that govern advocates, including those relating to the Advocate-General, and would effectively render the existing hierarchy of the Bar meaningless.

The Court further noted that, according to the rules of the Original Side of the Calcutta High Court, an attorney is authorised to cause service of a notice of motion and a chamber summons. However, a party opposite would not be compelled to accept service from a Supreme Court advocate who does not possess such authority. The Calcutta Original Side rules also impose personal responsibility on an attorney for costs such as requisition fees and deposition fees; a Supreme Court advocate acting on the Original Side would escape such liability. Consequently, the High Court would have no means of recovering those fees from the Supreme Court advocate because he would not be governed by the rules that regulate conduct on the Original Side.

In addition, the Court pointed out that attorneys, being officers of the Court, are bound by the taxation rules that limit the fees they may charge a client. A Supreme Court advocate, not being subject to those taxation rules, could potentially overcharge the client without restriction. Moreover, while attorneys are subject to the disciplinary jurisdiction of the High Court under the Letters Patent, a Supreme Court advocate could evade such jurisdiction, except perhaps under section 2 of the relevant Act, because no other provision empowers the High Court to discipline him.

The Court emphasized that it is unnecessary to create further instances of confusion. The very inconvenience and confusion described are sufficient to reject the construction proposed by the petitioners. The Court applied the proper rule of construction: when two possible interpretations exist, the one that leads to absurdity, practical inconvenience, or chaos must be avoided. The Court found that neither of the two constructions it proposed would produce such undesirable results; both would render the statutory provision workable in practice and would also advance the goal of unifying the Indian Bar.

Finally, the Court observed that the petitioners, recognizing the difficulty, attempted to resolve it by suggesting that a Supreme Court advocate practising before a High Court should be bound by the ordinary rules of practice, except those that would prevent him from acting and pleading, or that the High Court could frame separate rules for such advocates. The Court held that this concession effectively concedes the petitioners’ case, and therefore it could not be accepted.

The Court observed that the argument advanced by the petitioners would ultimately defeat their own case. It reiterated that clause 9 of the Letters Patent expressly empowers each High Court to approve, admit and enrol advocates, vakils and attorneys, and that such persons – the term “such” being deliberately qualified – are authorised to appear before that High Court, to plead, to act, or to do both, in accordance with rules made by the respective High Court. Consequently, the power of a High Court to make rules concerning the enrollment of advocates, vakils and attorneys and to define their functions is strictly limited to those individuals who have been admitted and enrolled by that High Court. That authority cannot be extended to Supreme Court advocates who are not listed on the High Court’s roll of practitioners.

The judgment noted that Section 119 of the Code of Civil Procedure excludes the application of the rules of practice relating to advocates and pleaders on the Original Side of a High Court unless those rules have been adopted by the High Court through regulations framed under the Letters Patent, which, as already explained, govern only the High Court’s own advocates. Moreover, Article 145 of the Constitution enables the Supreme Court of India to make rules for the regulation of practice and procedure of the Supreme Court itself, including rules governing persons who practice before it. That constitutional provision does not empower the Supreme Court to prescribe rules for the practice and procedure of the High Courts, nor does it allow the Supreme Court to set conditions under which Supreme Court advocates may practice before a High Court. The Act under consideration does not confer any power on the High Courts to frame rules that would bind Supreme Court advocates when they exercise the statutory right granted to them by the Act. Similarly, the rule-making power of the Bar Councils under Section 15 is confined to High Court advocates, and clause (b) of that section has been superseded by Section 2 of the present Act. Accordingly, there is no provision of law, apart from Section 2 itself, that would enable a High Court to prescribe any conduct rules for Supreme Court advocates or to compel them to obey any practice rule when they appear before that High Court.

The Court concluded that accepting either of the two constructions it had suggested would avert an absurd and undesirable outcome. Under such a construction, a Supreme Court advocate who chooses to practice in a High Court would be required to appear, plead, or otherwise act in the same manner as a High Court advocate, and would consequently be subject to the relevant rules that bind the advocates of that particular High Court. If Section 2 were given a different meaning, Supreme Court advocates would be free of any practice rule altogether when practising in a High Court. The Court further observed that even if the petitioners’ construction were adopted and High Courts were deemed to have the power to make rules for Supreme Court advocates practising before them, any minimal obligation or restriction—such as personal liability for fees or subjection to disciplinary jurisdiction—imposed by such rules would be constitutionally vulnerable and contrary to the purpose of the legislation.

The Court observed that if High Courts were allowed to impose rules that acted as a fetter on the statutory right of a Supreme Court advocate to practice in a High Court, such rules would not be binding on those advocates. It noted that under the petitioners’ construction two separate regimes would arise: the existing rules governing attorneys who acted for the original side and a new set of rules to be created for Supreme Court advocates who might choose to act for the original side. The Court held that the creation of a distinct class of actors in the original sides of the two High Courts would contradict the Legislature’s intended purpose of achieving uniformity and unification of the Indian Bar, and therefore the petitioners’ construction must be rejected.

The Court further considered the alternative construction whereby the rights of a Supreme Court advocate would vary from one High Court to another. It rejected the assumption, made without any warrant, that the Act was intended to achieve perfect symmetry and uniformity. The Court found that no serious inconvenience would result from such variation, observing that the status and rights of advocates of different High Courts already differ under their respective rules and that this variation has existed for a long time without causing inconvenience. The Court stressed that the Act does not seek to eliminate those existing differences among advocates of the various High Courts. Consequently, the construction proposed by the petitioner, Aswini Kumar Ghosh, would only create fresh disparities by introducing a new category of practitioners who would enjoy different rights in each High Court.

In contrast, the Court concluded that the construction it preferred would cause the least inconvenience and would address the long-standing grievance of High Court advocates who were barred from appearing and pleading in High Courts where they were not enrolled. By authorising Supreme Court advocates, once enrolled, to practise in any High Court as a matter of right and without needing the sanction of the respective Chief Justices, the Act permitted a clearly defined body of professionals to exercise the advocacy profession across all High Courts. The Court acknowledged that this step represented a forward movement toward uniformity, consistent with the full title of the Act and its non-obstante clause. Finally, the Court turned to the proviso attached to section 2, noting that some counsel argued that the word “practise” in the operative clause must be read to mean “appear, act and plead” because that is the meaning it carries in the proviso. The Court referred to the rule of construction that the same word should be given the same meaning wherever it occurs.

In the Act, the proviso provides that nothing in the section shall be interpreted as giving a post-Constitution judge—who may also be a Supreme Court advocate—the right to practice in any High Court in which he formerly held judicial office, where the judge had previously executed an undertaking not to practice there after ceasing to be a judge. In other words, the effect of the proviso is to exclude from the benefit created by the section any former judge who had undertaken not to engage in legal practice in that particular Court. The Court observed that this proviso was entirely redundant because Article 220 of the Constitution already prohibits a former judge from practising in the High Court he once served. Moreover, the wording of the proviso is considered inept, since it appears to suggest that a former judge who had not given such an undertaking would be free to practise, a suggestion that directly conflicts with the constitutional bar articulated in Article 220. The Court further held that there is no difficulty in giving the word “practice” in the proviso the same general meaning as in the operative part of the section, namely “to exercise the profession of an advocate.”

The Court rejected the argument that if “to practise” meant only “to plead,” a retired judge would be entitled to “act” in the High Court where he once served. It explained that Article 220 prevents the former judge from acting or pleading anywhere, regardless of the narrow or broad interpretation of the word “practice.” Consequently, it was unnecessary to expand the meaning of “practice” as the petitioner Aswini Kumar Ghosh had contended. The Court also noted that a general rule of construction may be displaced by the specific subject or context. For the reasons stated, the Court concluded that whichever method of construction is adopted, the petition could not succeed and therefore must be dismissed. Accordingly, the appeal was allowed. The parties were represented by agents as follows: the respondents were represented by P. K. Bose; Intervener No 1 by P. K. Mukherjee; Intervener No 2 by Sukumar Ghose; Intervener No 3 by I. N. Shroff on behalf of P. K. Bose; and Intervener No 4 by Bajinder Narain.