Jetha Nand vs The Hon'ble Judges of the Punjab High Court

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 490 of 1860

Decision Date: 05/12/1961

Coram: K.C. Das Gupta, P.B. Gajendragadkar, A.K. Sarkar, K.N. Wanchoo, N. Rajagopala Ayyangar

In this matter the Supreme Court of India considered an appeal filed by Jetha Nand against the Hon'ble Judges of the Punjab High Court. The judgment was rendered on 5 December 1961 by a Bench consisting of Justices K.C. Das Gupta, P.B. Gajendragadkar, A.K. Sarkar, K.N. Wanchoo and N. Rajagopala Ayyangar. The case is reported in the 1962 volume of the All India Reporter at page 742 and also appears in the 1962 Supplement to the Supreme Court Reporter at page 961. The issue arose under the provisions of the India (Adaptation of Existing Indian Laws) Order, 1947, section 5, and section 14 of the Indian Bar Councils Act, 1926, concerning whether an advocate enrolled in the Chief Court of Sind before the partition retained the right to practice in the courts of India after Sind ceased to be part of the country.

The appellant, Jetha Nand, had been enrolled as an advocate in the Chief Court of Sind on 14 May 1947. He migrated to India at the end of 1948 and subsequently practised before the courts in Delhi. On 8 October 1956 the Chief Justice of the Punjab High Court issued an order prohibiting the appellant from continuing his practice in the Delhi courts. The appellant challenged this prohibition by filing an application on 8 November 1956, asserting that his enrollment in the Chief Court of Sind conferred upon him the entitlement to appear before any subordinate court within the territory of India, as envisaged by the Indian Bar Councils Act, 1926. The Full Bench of the Punjab High Court rejected his claim, holding that the partition of India terminated the legal status of the Chief Court of Sind as a High Court for the purposes of the Act. The Supreme Court agreed with that assessment, observing that the Chief Court of Sind functioned as a High Court under the Act only up to 14 August 1947. By virtue of section 5 of the India (Adaptation of Existing Indian Laws) Order, 1947, the court ceased to exist for the purposes of the Act from 15 August 1947 onward. Consequently, the roll of advocates maintained by that court lost its validity as a roll kept by a High Court within the meaning of the Act. As a result, every person whose name remained on that roll, including the appellant, ceased to be an advocate for the purposes of section 14 of the Indian Bar Councils Act, 1926, and thereby lost the statutory right to practise before any court in India.

The appeal was entertained under civil appellate jurisdiction as Civil Appeal No. 490 of 1860. It was pursued by special leave from the judgment and order dated 6 October 1958 of the Punjab High Court in Civil Miscellaneous No. 28 of 1958 (File ‘A’). Counsel for the appellant was identified as Mohan Behari Lal, while the respondent was represented by counsel designated as N. S. The Court proceeded to issue its judgment, affirming the position that the appellant’s right to practice, which existed on 14 August 1947, terminated with the operation of the India (Adaptation of Existing Indian Laws) Order, 1947.

Counsel for respondent No. 1 appeared, and counsel for respondent No. 2 also appeared. The judgment was delivered on 5 December 1961 by Justice Das Gupta. The appellant, Jetha Nand (Betab), had been enrolled as an advocate in the Chief Court of Sind on 14 May 1947. After the political changes of the period, he departed for India at the end of 1948 and subsequently practiced before the courts in Delhi. On 8 October 1956 the Chief Justice of the Punjab High Court issued an order that prohibited the appellant from practising as an advocate in the Delhi courts. In response, on 8 November 1956 the appellant filed an application before the Punjab High Court, contending that his earlier enrollment in the Chief Court of Sind entitled him to practice before all subordinate courts throughout the territory of India. The Full Bench of the Punjab High Court dismissed the appellant’s application, holding that, following the partition of India, he could no longer be regarded as an advocate enrolled under the provisions of the Bar Councils Act. The appellant then filed the present appeal, obtaining special leave to be heard by this Court.

The appellant argued that, immediately before the partition, he possessed the right to practise before any court in British India, and that this right persisted despite the dissolution of “British India” at partition, the subsequent creation of Indian provinces, and later the establishment of the Indian Union under the Constitution, whereby those provinces became states but the same courts continued to function. Accordingly, he maintained that his entitlement to practice before those courts should also have continued. The respondents, on the other hand, contended that the appellant’s right to practise before courts that were not under the jurisdiction of the Chief Court of Sind terminated at the moment Sind ceased to be part of India and the Chief Court of Sind ceased to be a High Court within India.

Because the appellant based his claim on section 14(1)(b) of the Indian Bar Councils Act, the Court first examined the structure of that Act. The Act was enacted to provide for the constitution and incorporation of Bar Councils for certain courts in British India, to confer powers and impose duties upon those Bar Councils, and to amend the law relating to legal practitioners entitled to practise in the courts. While the Act extended to the entirety of British India, its initial application was limited to a specific list of High Courts: the High Court at Calcutta and the High Courts at Madras, Bombay, Allahabad, Patna, and Rangoon. Furthermore, section 1, sub‑section 2 of the Act provided that it would also apply to any other High Court, within the meaning of clause 24 of section 3 of the General Clauses Act, 1897, as the Governor‑General in Council might declare by notification in the Gazette.

In the judgment, the Court explained that the Act applied only to those High Courts that had been expressly designated by the Governor‑General in Council. Sections 2, 17, 18 and 19 were slated to take effect immediately, whereas the remaining provisions were to become operative for any such High Court on a date that the Governor‑General in Council might specify by means of a Gazette notification. Section 2 gave the meaning of two key terms: it described an “advocate” as a person whose name had been entered in the roll of advocates of a High Court pursuant to the provisions of the Act, and it defined “High Court” as a High Court to which the Act was applied. Sections 3, 4 and 5 dealt with the constitution and incorporation of Bar Councils. Section 8 imposed on every High Court the duty of preparing and maintaining a roll of its advocates and expressly provided that no person could claim a right to practice before a High Court unless his or her name appeared on that roll. Section 10 authorised a High Court to reprimand, suspend or remove from practice any of its advocates who were found guilty of professional or other misconduct. The procedure for exercising such powers was outlined in sections 10, 11, 12 and 13. In particular, section 12 stipulated that when an advocate was reprimanded or suspended under the Act, a record of the punishment had to be entered against his or her name in the roll of advocates, and that when an advocate was removed from practice his or her name had to be struck off the roll immediately. Section 14, inter alia, provided that an advocate who was entered in the roll of a High Court was entitled as of right to practice in any other court in British India.

The Court noted that it was not contested that the Governor‑General, by Gazette notification, had declared the Chief Court of Sind to be a High Court to which the Act applied, and that a subsequent notification had directed that all provisions of the Act would become effective in respect of the Chief Court of Sind on a date well before the year 1947. Although the original notifications were not produced before the Court, the Court proceeded on the basis that on 14 May 1947, when the appellant was enrolled as an advocate of the Chief Court of Sind, he satisfied the definition of “advocate” under the Indian Bar Councils Act and, accordingly, he possessed a right of practice in any subordinate court throughout British India at that time. The remaining issue for determination was whether that statutory right survived the cessation of Sind’s belonging to India. The Court observed that the definition in section 2 requires an advocate to be someone whose name remains on the roll of advocates of a High Court. Consequently, if an advocate’s name were removed from that roll— for example under the circumstances described in section 12— the individual would no longer qualify as an advocate within the meaning of section 14, even though his name had formerly been entered.

If a name is removed from the roll of advocates under section 12(7), the person ceases to be an advocate within the meaning of section 14 even though his name had once been entered in that roll. Consequently, the expression “advocate entered in the roll of advocates” can refer only to a person whose name continues to appear on that roll. The Court then considered the situation that would arise if a High Court were to cease to exist because of abolition or any other reason. The only logical answer is that when a High Court ceases to exist, the roll that it used to maintain also loses its legal existence. Therefore, any person whose name was on that now‑defunct roll can no longer be regarded as an advocate under section 14 or any other provision of the Act. The Court found that this description fitted the facts of the present case. The Chief Court of Sind had been designated a High Court for the purposes of sections 3 to 19 of the Indian Bar Councils Act by a notification issued by the Governor‑General in Council under section 1 sub‑section 2 of that Act. It would be unreasonable to assume that, after Sind ceased to be a part of India, the Chief Court of Sind continued to operate as a High Court for the purposes of Indian law. Any lingering uncertainty on this point was removed by the provisions contained in the Indian (Adaptation of Existing Indian Laws) Order, 1947.

The Court recalled that section 18 sub‑section 3 of the Indian Independence Act provides that the law of British India and of the various parts thereof existing immediately before the appointed day shall, insofar as it is applicable and with the necessary adaptations, continue as the law of each new Dominion and its parts until the respective legislature or any other competent authority makes a different provision. Numerous adaptations were required to avoid complications and confusion that might otherwise have arisen. Among the adaptation orders, the Court focused on Adaptation Order No. 16, titled the India (Adaptation of Existing Indian Laws) Order, 1947. This Order defined the appointed date as 15 August 1947. Section 5 of that Order states: “Any reference in an existing Indian law to a High Court which as from the appointed day ceases to be a High Court for any part of the Dominion of India, shall (a) if the reference be to the High Court of Judicature at Lahore, be replaced by a reference to the High Court of East Punjab, and (b) in any other case, be omitted.” The Chief Court of Sind, which was a High Court within the meaning of the General Clauses Act, ceased to be a High Court for any part of the Dominion of India as of 15 August 1947. Accordingly, any reference to that court in the Indian Bar Councils Act had to be omitted. This interpretation led the Court to conclude that the roll of the Chief Court of Sind lost its legal effect after that date, and consequently persons whose names remained on that roll were no longer advocates under section 14 of the Act.

The Court held that any reference to that Court, as a Court to which the Act applied, had to be omitted when the Indian Bar Councils Act, 1926 was applied after that date. Thus, the Chief Court of Sind, which had functioned as a High Court under the Indian Bar Councils Act, 1926 until 14 August 1947, was a High Court during that period. It therefore ceased to be a High Court for the purposes of that Act from 15 August 1947, losing its jurisdictional status. Consequently, the register that the Chief Court of Sind had kept was, from 15 August 1947, no longer a register maintained by a High Court as defined by the Indian Bar Councils Act. Accordingly, every individual whose name appeared on that register ceased to be an advocate within the meaning of section 14 of the Indian Bar Councils Act, 1926. Consequently, each such person lost the statutory right to practise before any Indian court, thereby being barred from appearing as counsel in Indian legal proceedings. The Court noted that this conclusion followed inevitably from the fact that the Adaptation Order contained no saving clause preserving any rights, thereby confirming the legislative intent. Accordingly, the mandated omission under the Adaptation Order removed the Chief Court of Sind from the roster of courts to which the Indian Bar Councils Act, 1926 continued to apply.

Accordingly, although the appellant possessed a right on 14 August 1947 to practice before courts subordinate to any Indian High Court, that right terminated once the aforementioned Adaptation Order came into force. The Court added that accepting the appellant’s contention would have created an anomalous situation in which no Indian court could exercise disciplinary jurisdiction over him in cases of misconduct. Earlier the Court had emphasized that the design of the Bar Councils Act required each High Court in the country to possess disciplinary jurisdiction over the advocates whose names appeared on its roll. The Court further noted that the Adaptation Order’s provisions continued to uphold this disciplinary scheme across the High Courts. The Court concluded that the High Court had correctly dismissed the appellant’s application because the appellant no longer possessed a statutory right to practice. Consequently, the Court ordered that the appeal be dismissed in its entirety, leaving no further relief available to the appellant. Given the circumstances of the case, the Court elected not to make any order concerning costs, as the appellant had proceeded as a pauper. However, the appellant, who had filed the appeal as a pauper, was directed to pay the court fees that he would have been required to pay. The Court explained that this amount would have been due had the appellant not been permitted to pursue the appeal on paper.