Devata Prasad Singh Chaudhuri And Others vs The Hon’ble Chief Justice and Judges of the Patna High Court

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

Court: Supreme Court of India

Case Number: Petition No. 117 of 1958

Decision Date: 29 August 1961

Coram: S.K. Das, Bhuvneshwar P. Sinha, A.K. Sarkar, N. Rajagopala Ayyangar, J.R. Mudholkar

In the matter entitled Devata Prasad Singh Chaudhuri and others versus the Honorable Chief Justice and Judges of the Patna High Court, the Supreme Court of India issued its judgment on 29 August 1961. The opinion was rendered by a bench comprising Justice S.K. Das, Justice Bhuvneshwar P. Sinha, Justice A.K. Sarkar, Justice N. Rajagopala Ayyangar and Justice J.R. Mudholkar. The petition was filed under Article 32 of the Constitution for the enforcement of fundamental rights. The citation of the decision appears as 1962 AIR 201 and 1962 SCR (3) 305. The dispute centered on the Legal Practitioners Act, 1879 (Act XVIII of 1879), specifically sections 9 and 11, together with Rule 2 of Chapter III, Part VII of the General Rules and Circular Orders of the Patna High Court. Section 9 of the Act confers upon a duly enrolled Mukhtar the right to “practice” in any civil court, while section 11 empowers the High Court to make rules that define the “functions, powers and duties” of Mukhtars practising in subordinate courts. Rule 2, framed under the authority of section 11, stipulates that a Mukhtar may address a civil court only for the purpose of stating the nature and effect of his application, offering legal argument, or examining a witness, and only with the leave of the court. The petitioners argued that Rule 2 exceeded the rule‑making power conferred by section 11 and placed an unreasonable restriction on their rights guaranteed by Article 19(1)(g) of the Constitution. The Court held that sections 9 and 11 must be read together, and that the right to “practice” under section 9 cannot be separated from the “functions, powers and duties” defined in section 11. Consequently, the High Court may, through its rules, delimit the functions of Mukhtars in order to regulate their practice in civil courts, and such regulation does not violate the fundamental right to practice the profession as granted by the Act. The Court distinguished this case from the precedent set in Aswini Kumar Ghosh v. Arabinda Bose, (1933) S.C.R. 1.

The petition, numbered 117 of 1958, arose in original jurisdiction and sought a writ directing the declaration that Rule 2 was unconstitutional, void and inoperative. Counsel for the petitioners—represented by senior advocates—presented the arguments, while the respondents, the Chief Justice and Judges of the Patna High Court, did not appear before the Supreme Court. As a result, the petition was heard ex parte on 29 August 1961, and the judgment was delivered by Justice S.K. Das. The petition was filed on behalf of the Bihar State Mukhtars’ Association, Patna, together with its Vice‑President and General Secretary. The petitioners maintained that the rules promulgated as early as 1922 under section 11 of the Legal Practitioners Act, governing the functions, powers and duties of Mukhtars in subordinate courts, were invalid because they contravened the petitioners’ fundamental right under Article 19(1)(g) and were not saved by clause (6) of that article. Specifically, they challenged the validity of Rule 2 incorporated in Chapter III, Part VII of the General Rules and Circular Orders of the Patna High Court (Civil), 1922, and prayed for a writ, direction or order declaring the rule unconstitutional, void and inoperative. The Court proceeded to read the rule and set out the undisputed facts before addressing the constitutional challenge.

The petitioners argued that a rule that had been made in 1922 under section eleven of the Legal Practitioners Act, 1879 (referred to as “the Act”) dealt with the functions, powers and duties of Mukhtars who practiced in subordinate courts. They contended that this rule was now invalid and void because it violated the fundamental right guaranteed to them by article nineteen‑one‑g of the Constitution of India and because the exception in clause six of that article did not protect the rule. Specifically, the petitioners challenged the validity of rule two, which had been issued by the Patna High Court under section eleven of the Act and incorporated in Chapter Three, Part Seven of the General Rules and Circular Orders of the High Court of Judicature at Patna (Civil), 1922. The petitioners asked this Court to issue an appropriate writ, direction or order declaring that rule two was unconstitutional and consequently void and inoperative. The Court indicated that it would read the rule after presenting a few undisputed facts. According to the petitioners, the Bihar State Mukhtars’ Association had been formed about thirty years earlier with the purpose of protecting generally the interests of Mukhtars in Bihar who practiced in courts subordinate to the Patna High Court, as defined in section three of the Act. At various annual conferences the Association had passed resolutions urging the High Court to remove the restriction imposed by rule two on the right of Mukhtars to practice in subordinate civil courts. The High Court declined to remove the restriction. On 27 July 1958, at an emergency meeting of the Association’s Executive Committee, a resolution was adopted to approach the Supreme Court under article thirty‑two of the Constitution. The present writ petition was filed in accordance with that resolution.

The enrolment of Mukhtars was governed by certain provisions of the Act, which required reference to section three of the Act. Section three defined “a subordinate court” as any court that was below the High Court, including Small Causes courts established under Act nine of 1850 or Act eleven of 1865. The Act also defined “legal practitioner” to include an advocate, vakil or attorney of any High Court, a pleader, a Mukhtar or a revenue‑agent. Section six of the Act empowered the High Court to make, from time to time, rules that were consistent with the Act on matters such as the qualifications, admission and certification of persons suitable to be Mukhtars of the subordinate courts. It appeared that, by a rule made under section six, the Patna High Court had stipulated that any person who could produce a certificate from a committee constituted by the High Court, confirming that the person had passed an examination in subjects prescribed from time to time by the High Court for the Mukhtarship examination, could be admitted as a Mukhtar to practice in courts subordinate to the High Court. Rule ten specified the subjects in which that examination was to be held. This framework formed the basis of the petitioners’ challenge to rule two.

In the matter before the Court, the examination that had been conducted for persons seeking to become Mukhtars was identified as the Mukhtarship examination. The examination had been discontinued sometime during the fiscal year 1947‑48. Pursuant to section 7 of the governing Act, the High Court had issued a series of rules that governed the granting of certificates to individuals who successfully passed the required examination and who consequently sought admission as Mukhtars. Those rules also stipulated that each certificate issued under section 7 had to be renewed on an annual basis, thereby ensuring that the right to practice remained subject to periodic verification by the Court.

The petitioner’s counsel based his submissions primarily on the provisions contained in section 9 of the Act and recited the entire wording of that provision. Section 9 read as follows: “Every mukhtar holding a certificate issued under section 7 may apply to be enrolled in any Civil or Criminal Court mentioned therein and situate within the same limits; and, subject to such rules as the High Court may from time to time make in this behalf, the presiding Judge shall enroll him accordingly; and thereupon he may practise as a mukhtar in any such Civil Court and any Court subordinate thereto, and may (subject to the provisions of the Code of Criminal Procedure) appear, plead and act in any such Criminal Court and any Court subordinate thereto.” Section 10, on the other hand, provided that, except as expressly permitted by the Act or any other statute then in force, no person could practise as a Mukhtar in any Court unless he possessed a certificate issued under section 7 and had been enrolled in that particular Court or in a Court subordinate to it. Subsequently, section 11 empowered the High Court to make rules concerning the functions, powers and duties of Mukhtars practising in subordinate courts, stating: “Notwithstanding anything contained in the Code of Civil Procedure, the High Court may, from time to time, make rules declaring what shall be deemed to be the functions, powers and duties of Mukhtars practising in the subordinate courts and, in the case of a High Court not established by Royal Charter, in such Court.” The Patna High Court used this authority to promulgate a series of rules, one of which was Rule 2, which read: “A Mukhtar shall not be allowed to address any Civil Court except for the purpose of stating the nature and effect of his application or to offer any legal argument or to examine any witness without the leave of the Court specially given.” The petitioner’s counsel argued that section 9 conferred upon every Mukhtar who held a valid certificate the unconditional right to apply for enrolment in any Civil or Criminal Court that was subordinate to the High Court, and that, once enrolled according to the applicable rules, the Mukhtar was entitled to practise freely in any such Civil Court and its subordinate tribunals, as well as to appear, plead and act in any Criminal Court. According to the counsel, this statutory right could not be attenuated by any rule, and section 11, which authorized the High Court to define the powers and duties of Mukhtars, did not grant the Court the power to curtail the right guaranteed by section 9.

The Court observed that the power vested in the High Court to make rules defining the functions, powers and duties of Mukhtars practising in subordinate courts does not include authority to diminish the entitlement conferred by section 9 of the Act. The petitioners argued that the impugned rule curtailed a Mukhtar’s right to appear in civil courts because it stipulated that a Mukhtar could address a civil court only for the purpose of stating the nature and effect of his application, offering any legal argument, or examining any witness, and only with special leave of the court. They contended first that the rule exceeded the rule‑making authority granted under section 11, and second that it imposed an unreasonable restriction on the right guaranteed by Article 19(1)(g) of the Constitution. The Court identified the precise question for determination: whether the impugned rule was beyond the power conferred on the High Court by section 11 of the Act. The Court clarified that if the rule was within the scope of the Act, no violation of any fundamental right of the petitioners could be established, since the right to practice in subordinate courts was created by the legislation itself. The parties had not challenged the constitutional validity of section 11 on the ground that it allowed an unreasonable restriction on a guaranteed right; rather, the dispute concerned whether the rule was justified by section 11. Consequently, the sole issue for the Court was whether the rule exceeded the authority provided by section 11. The Court concluded that the rule plainly fell within that authority. The petitioners’ counsel attempted to distinguish between the right to practice, as set out in section 9, and the functions, powers and duties mentioned in section 11. Relying on the majority judgment in Aswini Kumar Ghosh and another v. Arabinda Bose & another, the counsel asserted that the right to practice includes the right to appear, plead and act on behalf of parties in subordinate courts, and that the High Court’s power to make rules concerning functions, powers and duties merely implements the right in section 9 and cannot curtail it. Accordingly, the counsel argued that the impugned rule, which restricted Mukhtars’ ability to plead in civil courts, was beyond the scope of section 11. The Court, however, could not accept this line of reasoning. It held that sections 9 and 11 must be read together and should not be treated as separate provisions where one confers an absolute right and the other merely provides for rule‑making to give effect to that right. The Court noted that section 9 itself distinguishes between the right to practice in civil courts and the right to appear, plead and act in criminal courts, granting an unfettered right in criminal matters but imposing a qualified right in civil matters. Therefore, the impugned rule was found to be within the legislative framework and not an overreach of the High Court’s rule‑making power.

The Court observed that the Act must be interpreted as a whole and it would be incorrect to separate the right to practise conferred by section 9 from the functions, powers and duties of Mukhtars mentioned in section 11. The counsel for the petitioners was treating the two provisions as if one granted an absolute right while the other merely authorised the High Court to make rules to give effect to that right. The Court found that such a construction was unsatisfactory. It noted that section 9 itself distinguishes between a Mukhtar’s right to practise in civil courts and his right to appear, plead and act in any criminal court. In explicit terms, section 9 gives every Mukhtar the right to appear, plead and act in any criminal court, as recorded in the citation (1) [1953] S.C.R. 1, but it does not confer an unlimited right in civil courts. Rather, section 9 states that upon enrolment a Mukhtar may practise in any civil court, subject to the power given to the High Court by section 11 to make rules that define what shall be deemed the functions, powers and duties of Mukhtars practising in the subordinate courts. The Court held that when the High Court declares the functions and powers of Mukhtars in the subordinate courts, it may accordingly delimit those functions so as to regulate the right of practice. Consequently, the functions and powers cannot be viewed as detached from the right to practise; indeed, the right to practise depends upon the defined functions and powers. The Court further observed that the expression used in section 11 of the Act is considerably broader than the expression used in section 15 of the Indian Bar Council Act, 1926 (Act XXXVIII of 1926), which only empowers the Bar Council to make rules to provide for and regulate the rights and duties of Advocates of the High Court. The Court also rejected the reliance on the majority decision in Aswini Kumar Ghosh v. Arabinda Bose (1). That earlier decision concerned the interpretation of section 2 of the Supreme Court Advocates (Practice in High Courts) Act, 1951, which stipulates that notwithstanding any other law, every Advocate of the Supreme Court shall be entitled as of right to practise in any High Court irrespective of his enrollment there. The majority in that case held that a rule by a High Court that denied an Advocate of the Supreme Court the right to perform an essential part of his function, by imposing a dual agency requirement on the original side, went beyond a mere rule. The citation for that holding is (1) [1933] S.C.R. 1 of.

The Court observed that a rule which interfered with a lawyer’s statutory right to practice would constitute a serious invasion of that right, and that the authority to create such a rule could exist only if the statute expressly reserved that power. The majority opinion in the earlier decision held that, unless the statute expressly reserved the power, a rule could not be made to contradict the right conferred by section 2 of the Supreme Court Advocates (Practice in High Courts) Act, 1951. The Court therefore noted that the essential point was the requirement that any power to curtail the right must be expressly provided for in the legislation.

The Court then examined sections 9 and 11 of the same Act and held that these provisions must be read together. It reasoned that the functions and powers mentioned in section 11 are not separable from the right to practice described in section 9. Consequently, section 11 clearly reserves to the High Court the authority to frame rules that define the functions, powers and duties of Mukhtars practising in subordinate courts. If this interpretation of sections 9 and 11 is accepted, the principle laid down by the majority in Aswini Kumar Ghosh v. Arabinda Bose cannot be invoked to assist the petitioners in the present matter.

On the basis of the foregoing reasoning, the Court held that rule 2 of the regulations made by the High Court under section 11 of the Act does not exceed the rule‑making power conferred upon the Court. Accordingly, the petitioners could not claim that their fundamental right to practice the profession for which they were enrolled under the Act had been violated. The petition was therefore dismissed. Because no respondent appeared before the Court, no order for costs was made. The petition was dismissed, and the case was closed. (2) [1953] S.C.R. 1