In Re: Sant Ram vs Unknown

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 7 April 1960

Coram: B.P. Sinha, J.L. Kapur, K.C. Das Gupta, K.N. Wanchoo

In this case, the matter titled In Re: Sant Ram vs Unknown, dated 7 April 1960, was brought before the Supreme Court of India. The bench comprised Chief Justice B P Sinha together with Justices J L Kapur, K C Das Gupta and K N Wanchoo. The issue was placed before a Constitution Bench by an order of the Chamber Judge dated 14 August 1959 because it concerned the constitutional validity, or vires, of rules made under Article 145 of the Constitution, specifically with reference to Rule 24 of Order IV‑A of the Supreme Court Rules as amended. After receiving a letter dated 28 April 1959 from the Supreme Court Bar Association, which forwarded a copy of a resolution passed by the Association’s Executive Committee, the Registrar commenced proceedings and conducted an enquiry under Rule 24(2) of Chapter IV‑A. The enquiry was directed against two individuals, namely Sant Ram and Budh Dev Sharma, on the basis of a complaint lodged by the Honorary Secretary of the Supreme Court Bar Association. The complaint asserted that the two respondents were “continuing their undesirable activities” and were observed each day on the court premises and in the verandah in front of the Bar Association, “accosting clients.” In response to the Secretary’s letter, the Registrar issued notices to both respondents requiring them to show cause why their names should not be placed on the “list of touts” that was to be displayed on the Court notice board in accordance with Rule 24. The Registrar fixed 9 May 1959 as the date for the enquiry, summoned the respondents to appear before him, and directed them to present any evidence they might wish to rely upon in order to demonstrate why their names should not be included in the list. The notice also required the respondents to file any written reply to the complaint on or before 6 May 1959 and to be prepared with all evidence and witnesses, if any, for the hearing scheduled for 9 May 1959. Copies of the complaint and other relevant documents were sent to the Secretary of the Supreme Court Bar Association, inviting him to participate in the proceedings as the Association might advise and requesting that he furnish particulars of the evidence supporting the complaint and be ready with such evidence. Pursuant to the notice, Budh Dev Sharma, also known as B D Pathak, filed his reply on 6 May 1959, attaching certain documents and praying that he be permitted to continue earning his livelihood. He further prayed that his employer, Shri Dharam Bhushan, Advocate, be allowed to have his name entered as a clerk in the Registry and also in the Bar Association. Subsequently, on 8 May 1959, Sant Ram submitted his reply, attaching a certificate signed by Mr M G Bhimasena Rao, Advocate, and praying that the notice against him be discharged and that he be “allowed to make…”

In this case, the Court recorded that the expression “both ends meet in the service of his present employer” referred to Mr M. G. Bhimasena Rao, Advocate. The proceedings before the Registrar began on 9 May 1959 and were concluded on 11 May 1959, at which stage the Registrar took evidence from the parties. A preliminary objection was then raised on behalf of the respondents, who contended that the Supreme Court Rules under which the proceedings had been instituted were beyond the powers granted to the Court by Article 145 of the Constitution. The respondents argued that the Registrar therefore lacked jurisdiction to commence the proceedings against them. The learned Registrar rejected this preliminary objection, stating that he was not empowered to disregard the Rules and must apply them as written. He further expressed that, had he been authorised to decide the objection on its merits, he would have found the objection wholly unfounded.

After hearing the evidence, the Registrar issued an order on 16 May 1959 in which he declared that he was satisfied that both respondents habitually frequented the precincts of the Court for the purpose of obtaining legal work for certain advocates in exchange for remuneration. He held that this conduct had continued for several years up to the date the show‑cause notice was served. Consequently, the Registrar directed that a list of touts be published immediately in accordance with Rule 24(1) of Order IV‑A of the Supreme Court Rules. The list was to contain the names of the two respondents and was to be displayed on the Court notice board for public notice. Only Sant Ram filed an appeal against the Registrar’s order before the Chamber Judge. The Chamber Judge, noting the constitutional issue raised by the appellant concerning the validity of the Rules, referred the matter to the Constitution Bench for determination.

The substantive issue that required determination was whether the Supreme Court possessed jurisdiction under Article 145 of the Constitution to formulate the Rules that were being challenged. Prior to the amendment that took effect on 15 April 1959, the Rules of the Court did not define the term “tout” nor prescribe a procedure for dealing with individuals alleged to be acting as touts. Order IV‑A was therefore introduced, bearing the heading “Professional or Other Misconduct”, and it incorporated provisions relating to the suspension or removal of advocates from the Court’s roll, as well as the procedure to be followed in proceedings initiated against an advocate. The specific provisions relevant to the present dispute were Rules 23 and 24, which read as follows: “23. Any Advocate, who accepts an engagement in any legal business through a person …” and “24. (1) The Registrar shall publish lists of persons proved to his satisfaction, by evidence of general repute or otherwise, habitually to act as touts, to be known as ‘lists of touts’ and may, from time to time, alter and amend such lists. A copy of every list of touts shall be kept hung upon the Court Notice Board.” These provisions formed the basis for the Registrar’s action and the subsequent challenge before the Constitution Bench.

Rule 23 states that any advocate who accepts an engagement in any legal business through a person included in the list of touts published as provided in the following rule shall be deemed guilty of professional misconduct. The rule is accompanied by an explanation defining the term “tout.” The explanation describes a tout as a person who, for consideration of any remuneration, procures the employment of an advocate in any legal business, or proposes to procure such employment on behalf of an advocate, or who, for the purpose of such procurement, frequents the precincts of the Court.

Rule 24 sets out the procedure for dealing with persons who are identified as touts. Sub‑rule (1) provides that the Registrar shall publish lists of persons who, to his satisfaction on the basis of evidence of general repute or otherwise, habitually act as touts; these lists are to be known as “lists of touts” and may be altered or amended from time to time. A copy of each list shall be kept on the Court notice board. The rule includes an explanation that a resolution passed by the Supreme Court Bar Association declaring any person to be a tout constitutes evidence of the general repute of that person for the purpose of the rule. Sub‑rule (2) mandates that no person shall be included in the list of touts unless he has been given an opportunity to show cause against his inclusion. Any person who wishes to contest the Registrar’s order may appeal to the Chamber Judge. Sub‑rule (3) authorises the Registrar, by general or special order, to exclude from the precincts of the Court all persons whose names appear on the list of touts.

The central question before the Court was whether these rules fall within the rule‑making authority conferred on the Supreme Court by Article 145(1)(a) of the Constitution. Article 145(1) permits the Supreme Court, subject to any law made by Parliament and with the President’s approval, to make rules for regulating generally the practice and procedure of the Court, including rules concerning the persons practising before the Court. It was submitted that the Court’s power is limited to rules governing “practice and procedure” and does not extend to rules that declare a person to be a tout or prescribe the procedure for such a declaration. The Court rejected this contention, holding that there is no merit in the argument. The Court affirmed that it possesses inherent jurisdiction to regulate conduct both inside and outside the Court when such conduct impacts the professional activities of an advocate. Consequently, the Court concluded that it is competent to frame rules governing the conduct of advocates and to maintain discipline, in addition to the authority expressly provided by Article 145.

The Court observed that it must formulate rules aimed at guaranteeing that officers of the Court, including legal practitioners who are enrolled on the roll of advocates, discharge their duties honestly and efficiently. Subject to any legislation that Parliament may enact, the Court bears the responsibility of maintaining proper discipline within its own proceedings and of demanding that legal practitioners who enjoy the privilege of appearing, acting and pleading before it observe appropriate standards. Consequently, in fulfilling its role as the highest judicial authority in the country, the Court is required to adopt rules that promote sound administration of justice and ensure that those who assist the Court in carrying out its functions conduct themselves properly. In addition to the Court’s inherent jurisdiction, the Constitution itself authorises the Court to make rules governing the general practice and procedure of the Court. The phrase “the practice and procedure of the Court” must be interpreted broadly and should encompass regulation of the conduct of every person who appears before the Court in matters relating to its business. Accordingly, the behaviour of advocates and their assistants, insofar as it pertains to the Court’s business, falls within the scope of regulation by the Court’s rules. Having accepted that the Court possesses the authority to frame rules concerning the conduct of persons practising before it, the Court concluded that it also has the power to prescribe a code of conduct for advocates, covering their relationship with clients and their conduct as officers of the Court while appearing in Court. For example, Rule 23 declares that an advocate commits professional misconduct if he accepts an engagement in any legal matter through a person listed as a “tout”; such a rule is well within the Court’s rule‑making competence. To give effect to that provision, the term “tout” must be defined, which the Court does in the explanation to Rule 23. Similarly, Rule 24, which sets out the procedure for publishing lists of touts and for conducting an enquiry to decide whether a particular person should be placed on such a list, also falls within the Court’s rule‑making power. The Court therefore found the argument that Rule 24 is ultra vires the Court’s authority to be untenable. The next contention raised was that Rule 24 violated Article 14 of the Constitution. The appellant struggled to demonstrate any specific manner in which discrimination occurred. It was vaguely suggested that a difference existed between the impugned provisions and section 36 of the Legal Practitioners’ Act (Act XVIII of 1879). Assuming such a difference, the Court noted that a mere difference does not automatically amount to discrimination. All individuals who frequent the precincts of the Court are subject to the same rules whenever the situation demands, and every person placed on the list of touts under Rule 24 will be treated alike regardless of any other considerations, leaving no room for discrimination within the Court’s precincts.

It was held that the mere existence of a rule classifying certain persons as touts does not, by itself, create discrimination. The Court observed that every individual who enters the precincts of this Court is subject to the same set of regulations whenever the circumstances call for their application. Consequently, any person whose name appears on the list of touts prescribed by Rule 24 will be treated in exactly the same manner as any other person on that list, regardless of any other factor. Because the rule applies uniformly to all listed individuals, the Court found there is no possibility of discriminatory treatment within the Court’s premises. The appellant also argued that the challenged rule violated Articles 19 and 21 of the Constitution by effectively barring him from the Court’s precincts, obstructing his professional activity and threatening his means of livelihood. The Court noted that the rule was formulated expressly to protect the integrity and credibility of the legal profession as practiced before this Court. In that light, the Court concluded that excluding touts from the Court’s precincts serves the public interest. If the appellant had been correctly declared a tout, the Court said, he could not reasonably claim that he was being denied the right to pursue an occupation that the Court itself regards as corrupting. A tout, by definition, cannot assert any entitlement in relation to the business of the Court, and every court where advocates appear has a duty to eradicate toutism completely.

With respect to Article 21, the appellant, after being permitted to dispense with his counsel, contended that the word “life” in that article inherently includes the concept of livelihood. The Court rejected this contention, stating that Article 21 does not specifically address the question of livelihood. The Court explained that matters relating to livelihood are covered by the freedoms enumerated in Article 19, particularly clause (g), and, to a limited extent, by Article 16. Therefore, the language of Article 21 cannot be employed to argue that “life” includes “livelihood.” Even assuming, for the sake of argument, that such an expansive interpretation were accepted, the appellant could be excluded from the Court’s precincts only after the procedure prescribed by the Court’s own rules had been duly observed. The Court reiterated that it had already determined the rule in question was not ultra vires. Accordingly, the remaining issue was whether the procedural requirements set out in the rule had been complied with, as alleged by the appellant. The Court pointed out that the appellant had been properly served with a notice calling upon him to show cause why his name should not be entered on the list of touts.

In this case the appellant filed a show‑cause petition and was allotted a period within which he could present any evidence that he had been advised to rely upon. He did not argue that the procedural rule itself had been ignored; rather, he claimed that the Registrar had refused to extend the time for his evidence and had failed to issue summons to his witnesses, thereby depriving him of the opportunity to adduce proof. The Court found no merit in this allegation. The matter had been dealt with as a summary enquiry, and the Registrar had considered it on two separate occasions. The appellant’s desire to examine certain lawyers on his behalf was frustrated because those lawyers did not appear on the date fixed, a circumstance that might indicate their unwillingness to support his case. Even if those advocates had appeared, the Court noted that it would have been difficult for them to demonstrate anything substantive, since they could not prove a negative. The burden of proof lay with the complainant to produce evidence that the appellant was engaged in touting. Accordingly, the Registrar’s essential task was to determine whether the complainant’s evidence was sufficient to establish the allegation. After review, the Registrar reached a clear finding that, based on evidence of reputation, the appellant had indeed been shown to be a tout to the Registrar’s satisfaction.

The Court further observed that the appellant had only begun appearing before this Court as a litigant after his conviction under section 409 of the Indian Penal Code. He asserted that he had worked as a clerk for a lawyer who had taken up his cause, but the records indicated that he changed employers frequently and claimed to be an advocate’s clerk without his name appearing in the Bar Association’s register of clerks. He alleged that several advocates of this Court had launched a false propaganda campaign against him and others because they feared that their clients were being misled into engaging other advocates. The Registrar did not accept this contention. Because the appellant was not a registered clerk, he could not perform any work that a clerk is authorized to do, and consequently he was observed moving about the Court corridors in a manner that gave rise to a genuine belief that his sole activity was to tout for legal practitioners willing to employ him for illicit purposes. The Court therefore rejected the argument that the appellant was merely a victim of suspicion and held that the general reputation evidence against him was sufficient to label him a “tout”. Accordingly, the appeal was dismissed with no merit found.