In Re: Lily Isabel Thomas vs Unknown on 14 January, 1964

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 14 January, 1964

Coram: B.P. Sinha, J.R. Mudholkar, K. Subba Rao, N. Rajgopala Ayyangar, Raghubar Dayal

In this case the Supreme Court of India, sitting on 14 January 1964, considered a petition that sought a declaration that rule 16 of Order IV of the Supreme Court Rules was invalid. The bench consisted of Justices B P Sinha, J R Mudholkar, K Subba Rao, N Rajgopala Ayyangar and Raghubar Dayal, and the opinion was delivered by Justice Ayyangar. The central issue raised in the petition was the proper construction of Article 145(1)(a) of the Constitution when it is read in the context of a request for a declaration that the aforementioned rule was beyond the power of the Court. The petition had been filed by an individual who, under the Advocates Act of 1961, possessed the right to practice before this Court.

The petitioner had originally been enrolled as an advocate in the Madras High Court on 15 November 1955 under the Indian Bar Councils Act of 1926, and she was subsequently admitted to the rolls of the Supreme Court on 29 October 1960 pursuant to Order IV of the Supreme Court Rules as they then stood. She asserted that, as an advocate who was entitled to practice before this Court, she possessed not only the right to plead but also the right to act for parties, and therefore she contended that any rule imposing additional qualifications on her before she could act was invalid. Accordingly, she prayed that rule 16(1) of Order IV of the Supreme Court Rules, as amended in 1962 and containing the prescribed qualifications, be declared ultra vires of the Court, and that she be recognised as an advocate on record without having to satisfy the requirements imposed by the impugned rule. Rule 16, whose validity was challenged, provided that no advocate would be qualified to be registered as an advocate on record unless he had undergone a one‑year training with an advocate on record approved by the Court and passed any tests that the Court might hold, unless the person was an attorney, and also unless he had an office in Delhi within ten miles of the Court House, gave an undertaking to employ a registered clerk within one month of registration, and paid a registration fee of twenty‑five rupees. It is relevant to note that, under the Rules, although every advocate whose name appeared on the common roll prepared under section 20 of the Advocates’ Act was entitled to plead, only those advocates who were registered as “advocates on record” were also entitled to act, as provided by rule 17 of Order IV, which stipulates that an advocate on record could act as well as plead for any party upon filing a memorandum of appearance together with a duly executed Vakalatnama, and that no other advocate could file an appearance or act for a party in the Court.

The petitioner, who argued her case in person with ability and moderation, contended that section 58(3) of the Advocates Act granted her the right to practise in the Supreme Court as of right. That provision reads that, notwithstanding anything in the Act, every person who, immediately before the first day of December 1961, was an advocate on the roll of any High Court under the Indian Bar Councils Act of 1926 or who has been enrolled as an advocate under this Act shall, until Chapter IV comes into force, be entitled as of right to practise in the Supreme Court, subject to the rules made by the Supreme Court for that purpose. She submitted that the “right to practise” mentioned in that statutory provision should be interpreted to include not only the right to plead but also the right to act on behalf of parties. On the basis of this interpretation she claimed that the qualifications prescribed in rule 16 were inconsistent with the statutory right conferred upon her, and therefore should be held void.

No Advocate other than an Advocate on Record shall be entitled to file an appearance or act for a party in the Court, unless the appearance is executed by the party in the prescribed form. The petitioner, who argued the case personally and presented her points with ability and moderation, contended that section 58(3) of the Advocates Act provides a right “as of right to practise” in this Court. Section 58(3) reads: “Notwithstanding anything in this Act, every person who, immediately before the 1st day of December, 1961, was an advocate on the roll of any High Court under the Indian Bar Councils Act, 1926 or who has been enrolled as an advocate under this Act shall, until Chapter IV comes into force, be entitled as of right to practise in the Supreme Court, subject to the rules made by the Supreme Court in this behalf.” She argued that the phrase “right to practise” includes not only the right to plead but also the right to act. The Court observed that this interpretation is correct up to that point. The petitioner further submitted that the scope and content of the rules that may lawfully be made by this Court must be examined. She asserted that, if there were no rules made by the Supreme Court, or if, as she claims, the present rules—Order IV Rules 16 and 17—were invalid, she would be entitled not merely to plead but also to act, which she is presently barred from doing by Rule 17 unless she satisfies the requirement imposed by Rule 16.

The issue for determination, therefore, was whether the impugned rules are valid. Their validity depended on the proper construction of Article 145(1)(a), under which the rules were framed. Article 145(1)(a) states: “Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court including – (a) rules as to the persons practising before the court.” Two points required attention. First, the opening words of the article make clear that any rule made by the Court is subordinate to any law enacted by Parliament; consequently, if a parliamentary law restricts the Court’s rule‑making power or contains provisions inconsistent with such rules, the parliamentary law prevails. The petitioner submitted that section 58(3) of the Advocates Act is such a parliamentary law and that the absolute right it confers to “practise as of right” cannot be limited by rules made by this Court. The Court noted that the petitioner’s argument led to a reliance on the decision of this Court in Aswini Kumar Ghosh and.

In that earlier case the Court examined the meaning of the phrase “right of practise” as it appeared in the Supreme Court Advocates (Practise in High Court) Act, 1951. Section 2 of that Act declared that every advocate of the Supreme Court was entitled, as of right, to practise in any High Court whether or not he was an advocate of that particular High Court. The Court explained that this entitlement meant not only the right to plead but also the right to act on behalf of a party, and that the provision in the 1951 Act prevailed over any rule made by the High Courts of Calcutta and Bombay that sought to limit the right to act on the original side of those courts. The decision, however, did not extend very far because it was based on a conflict between the “right to practise as of right” created by the 1951 enactment and a saving clause in the Bar Councils Act, 1926 that authorised the High Courts of Bombay and Calcutta to restrict the “right to act” on the original side of those courts. The Court held that the later legislation impliedly repealed the earlier saving provision, thereby removing the restriction.

The petitioner’s contention that the words “right to practise” normally encompass both the right to plead and the right to act was accepted by the Court, and it was observed that, in the absence of any Supreme Court rule limiting the right to act, the petitioner would unquestionably possess both rights. Nevertheless, the Court pointed out that section 58(3) of the Advocates Act made the right conferred on advocates enrolled under the Bar Councils Act to practise in the Supreme Court subject to any rules made by the Supreme Court. This position was reinforced by the saving clause in section 52 of the same Act, which expressly preserved the Supreme Court’s power to make rules under article 145 of the Constitution for establishing the conditions under which a senior advocate may practise in that Court and for determining the persons who may act on behalf of parties. Because of the saving in section 52, a rule that limited the right to act to a particular class of advocates could not be said to be inconsistent with a Parliamentary law. Consequently, the only issue remaining for consideration was whether article 145(1)(a) provided sufficient authority for the Court to frame the impugned rules. The argument presented to the Court, with considerable earnestness, was that under article 145 the rules to be framed under items (a) to (i) were …

The petitioner argued that the power to frame rules under Article 145(1)(a) was intended to regulate the practice and procedure of the Court, and that this purpose was evident from the language of the provision. She further contended that even if head (a) – which reads “rules as to the persons practising before the Court” – were interpreted as a separate subject, completely detached from the introductory phrase “practice and procedure of the Court,” the authority to make such rules would still be limited to regulating the conduct of those who are already entitled by law to practise before the Court and who are actually practising. The Court noted that many decisions had been cited to explain the expression “practise and procedure of the Court,” but it considered it unnecessary to refer to those authorities. Those cases might have been relevant only if the entire rule‑making power depended solely on the words “regulating the practice and procedure of the Court.” However, the Article expressly provides for rules “as to persons practising before the Court,” which, in the Court’s view, indicates that item (a) constitutes an independent head of power rather than merely a component of a broader power to regulate practice and procedure. The presence of the word “including” before the list of items (a) to (i), together with the specific subject matter of item (a), reinforces its status as a distinct source of authority. Consequently, the Court decided not to examine the precise content of a hypothetical “regulation of practice and procedure.” Instead, it focused on the meaning of the phrase “rules as to the persons practising before the Court,” because if the impugned rules could be justified under this authority, their validity could not be challenged. Regarding the wording of item (a), the petitioner presented a two‑fold submission. First, she contrasted the phrase with entry 77 of the Union List in Schedule VII, which uses the expression “Persons entitled to practise before the Supreme Court.” She argued that the terms “persons practising” and “persons entitled to practise” differed, the former being narrower and allowing the Court to make rules only concerning the manner in which individuals who had already obtained the statutory right to practise under Parliament’s authority could exercise that right. She further distinguished “being entitled to practise,” which she said involves setting qualifications for acquiring the right to practice – a matter within the scope of entry 77 – from a rule concerning “a person practising before a court,” which she characterized as the subsequent stage after parliamentary legislation had conferred the right to practice.

In this case the petitioner's argument was that a rule made under article 145(1)(a) could not be used by this Court to grant a person the right to practise before the Court or to prescribe the qualifications required for that right, because those matters fell within entry 77 of the Union List and were therefore the exclusive domain of parliamentary legislation. The Court found that it could not accept this line of reasoning. It did not agree that the expression “persons practising before the Court” was narrower than the expression “persons entitled to practise before the Court.” The learned Additional Solicitor‑General correctly observed that, if Parliament had not enacted any law conferring a right to practise before this Court, the construction suggested by the petitioner would imply that the Court could not make a rule prescribing qualifications for practice. The Court noted that the words used in article 145(1)(a) were taken substantially from section 214(1) of the Government of India Act, 1935, which read: “The Federal Court may from time to time, with the approval of the Governor‑General in his discretion, make rules of Court for regulating generally the practice and procedure of the Court including rules as to the persons practising before the Court….” The 1935 Act did not contain a legislative entry comparable to entry 77 of List I. Nevertheless, the Federal Court, soon after its establishment, framed rules under Order IV that prescribed qualifications for enrolment as Advocates of the Federal Court. Those rules required a standing of five years on the roll of a High Court and satisfaction of certain conditions for ordinary advocates, and a standing of ten years for senior advocates. By highlighting this historical practice, the Court demonstrated that the phrase “as to the persons practising before the Court” was intended in a comprehensive sense, covering not only the manner of practice but also the right and entitlement to practice. The same words, repeated in article 145(1)(a), retain that same meaning. The Court added that there is no inconsistency in allowing both Parliament and this Court to prescribe qualifications for practice; the rule‑making power of the Court is subject to any parliamentary law that governs the entitlement to practise. Consequently, the Court concluded that, on the express terms of article 145(1)(a), the impugned rules are valid and fall within the Court’s rule‑making authority.

The Court held that under Article 145(1)(a) the rules numbered 16 and 17 that were challenged are both valid and fall within the power to make rules. The learned Additional‑Solicitor submitted additionally that the rule could be justified by invoking the inherent powers of the Court and supported that submission by referring to the earlier decision in re: Sant Ram. The Court noted that the decision in re: Sant Ram had indeed discussed the inherent powers of the judiciary, but emphasized that reliance on those powers was not essential for the present determination. In interpreting Article 145(1)(a), the Court concluded that the construction of the provision itself provided sufficient basis to uphold the rules without needing to invoke the Court’s inherent authority. The Court reasoned that because Article 145(1)(a) expressly confers rule‑making authority, the provision alone sufficed to validate the regulations without auxiliary justification. Accordingly, the argument presented by the learned Additional‑Solicitor was rejected because it was deemed unnecessary for reaching the final determination on the validity of the rules. Consequently, the petition that challenged the validity of rules 16 and 17 was found to be without merit and was therefore dismissed by the Court. The dismissal of the petition also meant that the request for any further relief was denied, and the challenged rules remained in force.