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Right to practice is not an absolute right

Law Kerala - 22:48
The Advocates Act, 1961 itself was introduced to implement the recommendations of the All India Bar Committee made in 1953. It aimed at establishment of an All India Bar Council, a common rule for the advocates and integration of the Bar into a single class of practioners known as ‘advocates’.
It was also to create autonomous Bar Councils, one for the whole of India and one for each State. The Advocates Act provides for various aspects of the legal profession. Under Section 29 of the Advocates Act, only one class of persons is entitled to practice the profession of law, namely, advocates. Section 30 of the Advocates Act provides that subject to the provisions of the Act, every advocate whose name is entered in the State rolls shall, as a matter of right, be entitled to practice throughout the territories to which this Act applies, in all courts including the Supreme Court of India. Such an Advocate would also be entitled to practice before any tribunal or person legally authorized to take evidence and before any other authority or person before whom such an advocate is, by or under any law for the time being in force, entitled to practice. Section 33 of the Advocates Act further states that except as otherwise provided in that Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practice in any court or before any authority or person unless he is enrolled as an advocate under the Advocates Act. A bare reading of these three provisions clearly shows that this is a statutory right given to an advocate to practice and an advocate alone is the person who can practice before the courts, tribunals, authorities and persons. But this right is statutorily regulated by two conditions one, that a person’s name should be on the State rolls and second, that he should be permitted by the law for the time being in force, to practice before any authority or person. Where the advocate has a right to appear before an authority or a person, that right can be denied by a law that may be framed by the competent Legislature. Thus, the right to practice is not an absolute right which is free of restriction and is without any limitation. There are persons like Mukhtiars and others, who were earlier entitled to practice before the Courts, but the Advocates Act itself took away the right to practice which was available to them prior to its coming into force. Thus, the Advocates Act placed a complete prohibition upon the right to practice of those persons who were not advocates enrolled with the State Bar Council.

Therefore, the right to practice, which is not only a statutory right under the provisions of the Advocates Act but would also be a fundamental right under Article 19(1)(g) of the Constitution is subject to reasonable restrictions. An argument could be raised that a person who has obtained a degree of law is entitled to practice anywhere in India, his right, as enshrined in the Constitution and under the Advocates Act cannot be restricted or regulated and also that it is not necessary for him to enroll himself on any of the State rolls. This argument would be fallacious in face of the provisions of the Advocates Act as well as the restrictions contemplated in Article 19(6) of the Constitution. The Legislature is entitled to make a law relating to the professional or technical qualifications necessary for carrying on that profession.

We may also refer to a recent development of law in relation to right of the advocates or former judicial officers, to practice the profession of law. The Bar Council of India has been vested with the general power to make rules under Section 49 of the Advocates Act. In furtherance to this power vested with it, the Bar Council of India has framed the Bar Council of India Rules. Chapter III of these Rules deals with the conditions for the right to practice. Rule 7 of Chapter III of the said Rules is “An officer after his retirement or otherwise ceasing to be in service for any reasons, if enrolled as an Advocate shall not practice in any of the Judicial, Administrative Courts/Tribunals/Authorities, which are presided over by an officer equivalent or lower to the post which such officer last held.” Rules 7 and 7A of the Bar Council of India Rules, were introduced by the Bar Council of India on 14th October, 2007. This Rule clearly mandates that upon his retirement or when otherwise ceasing to be in service for any reason, a person will not be able to practice in the administrative tribunal, other tribunals, authorities, courts etc. over which he had presided and which were headed by an officer in a post equivalent to or lower than the post which he had held. The definition in the explanation of what an officer shall mean and include further widened the scope of interpretation. Not only this, requiring adherence to professional standard and values, Rule 7A further makes it mandatory that a person who has been dismissed, retrenched, compulsorily retired, removed or otherwise retired from Government Service or service of the High Court or Supreme Court on the charges of corruption, dishonesty unbecoming of an employee, etc. would not even be enrolled as an advocate on the rolls of a State Bar Council. These provisions clearly demonstrate the intention of the Legislature to place restrictions for entry to the profession of law. These restrictions have to be decided only on the touchstone of reasonableness and legislative competency. The restriction which withstands such a test would be enforceable in accordance with law.

Section 129(6) of the Customs Act, 1962 imposes a restriction upon non-members of CESTAT to appear before the tribunal. It is a partial restriction to the extent that the persons who have held the office of the President, Vice President or other Members of the Tribunal cannot appear, act or plead before that Tribunal. In modern times, there are so many courts and tribunals in the country and in every State, so that this restriction would hardly jeopardize the interests of any hardworking and upright advocate. The right of such advocate to practice in the High Courts, District Courts and other Tribunals established by the State or the Central Government other than the CESTAT remains unaffected. Thus, the field of practice is wide open, in which there is no prohibition upon the practice by a person covered under the provisions of Section 129(6) of the Customs Act. Secondly, such a restriction is intended to serve a larger public interest and to uplift the professional values and standards of advocacy in the country. In fact, it would add further to public confidence in the administration of justice by the Tribunal, in discharge of its functions. Thus, it cannot be held that the restriction has been introduced without any purpose or object. In fact, one finds a clear nexus between the mischief sought to be avoided and the object aimed to be achieved.

In Sukumar Mukherjee v. State of West Bengal, (1993) 3 SCC 723, the State of West Bengal had prohibited private practice by medical practioners who were also teaching in the medical institutions. This was provided under Section 9 of the West Bengal State Health Service Act, 1990. The argument raised was that this provision was repugnant to Section 27 of the Indian Medical Council Act, 1956 which, in turn, provides for the right of a registered medical practitioner to practice, as well as an argument that it ultra vires Articles 19(1)(g), 19(6) and 14 of the Constitution of India. Supreme Court repelled both these contentions and held that the prohibition against the members of the West Bengal Medical Education Service (WBMES) from practicing privately was not unconstitutional or repugnant to the statutory provisions. It only regulated a class of persons, i.e., the persons who were members of that service and secondly, this was intended to maintain standards of the medical education which was the very object of enacting the Indian Medical Council Act. 

Similarly, while dealing with the question as to whether the closure of butcher houses on national holidays or on certain particular days was unconstitutional and violative of the fundamental right to carry on business in terms of Articles 19(1)(g), 19(6) and 14 of the Constitution, in the case of Municipal Corporation of the City of Ahmedabad v. Jan Mohammed Usmanbhai, (1986) 3 SCC 20, a Constitution Bench of the Supreme Court, while rejecting the challenge, held as under : 

“Clause (6) of Article 19 protects a law which imposes in the interest of general public reasonable restrictions on the exercise of the right conferred by sub-clause (g) of clause (1) of Article 19. Obviously it is left to the court in case of a dispute to determine the reasonableness of the restrictions imposed by the law. In determining that question the court cannot proceed on a general notion of what is reasonable in the abstract or even on a consideration of what is reasonable from the point of view of the person or persons on whom the restrictions are imposed. The right conferred by sub-clause (g) is expressed in general language and if there had been no qualifying provision like clause (6) the right so conferred would have been an absolute one. To the persons who have this right any restriction will be irksome and may well be regarded by them as unreasonable. But the question cannot be decided on that basis. What the court has to do is to consider whether the restrictions imposed are reasonable in the interest of general public. In the State of Madras v. V.G. Row Supreme Court laid down the test of reasonableness in the following terms: “It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.” The expression ‘in the interest of general public’ is of wide import comprehending public order, public health, public security, morals, economic welfare of the community and the objects mentioned in Part IV of the Constitution. Nobody can dispute a law providing for basic amenities; for the dignity of human labour like provision for canteen, rest rooms, facilities for drinking water, latrines and urinals etc. as a social welfare measure in the interest of general public. Likewise in respect of legislation's and notifications concerning the wages, working conditions or the other amenities for the working class, the courts have adopted a liberal attitude and the interest of the workers has been protected notwithstanding the hardship that might be caused to the employers. It was, therefore, open to the legislature or the authority concerned, to ensure proper holidays for the municipal staff working in the municipal slaughterhouses and provide certain closed days in the year. Even according to the observations of the High Court nobody could have any objection to the standing orders issued by the Municipal Commissioner under Section 466(1)(D)(b) if municipal slaughterhouses were closed on certain days in order to ensure proper holidays for the municipal staff working in the municipal slaughterhouses. The only objection was that the standing orders direct closure of the slaughterhouses on Janmashtami, Jain Samvatsari, October 2 (Mahatma Gandhiji's birthday), February 12 (Shraddha day of Mahatma Gandhi), January 30 (Mahatma Gandhiji'sNirwan day), MahavirJayanti and Ram Navami. These days were declared asholidays under the standing orders for the Municipal Corporation slaughterhouses. The tests of reasonableness have to be viewed in the context of the issues which faced the legislature. In the construction of such laws and in judging their validity, courts must approach the problem from the point of view of furthering the social interest which it is the purpose of the legislation to promote. They are not in these matters functioning in vacuo but as part of society which is trying, by the enacted law, to solve its problems and furthering the moral and material progress of the community as a whole. (See Jyoti Persh adv. Union Territory of Delhi) If the expression ‘in the interest of general public’ is of wide import comprising public order, public security and public morals, it cannot be said that the standing orders closing the slaughterhouses on seven days is not in the interest of general public. In view of the aforesaid discussion we are not prepared to hold that the closure of the slaughter house on seven days specified in the two standing orders in any way put an unreasonable restriction on the fundamental right guaranteed to the petitioner respondent under Article 19(1)(g) of the Constitution. This leads us to the second contention raised on behalf of the respondent, which is based on Article 14 of the Constitution. The High Court had repelled this contention for a valid reason with which we fully agree. It is now well established that while Article 14 forbids class legislation it does not forbid reasonable classification for the purposes of legislation and that in order to pass the test of permissible classification two conditions must be fulfilled, namely, (i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) such differentia must have rational relation to the object sought to be achieved by the statute in question. The classification, may befounded on different basis, namely, geographical, or according to objects or occupations or the like and what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. There is always a presumption in favour of constitutionality of an enactment and the burden is upon him who attacks it, to show that there has been a clear violation of the constitutional principles. The courts must -presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed against problems made manifest by experience and that its discrimination's are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest, and finally that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common rapport, the history of the times and may assume every state of facts which can be conceived to be existing at the time of legislation. The objects sought to be achieved by the impugned standing orders are the preservation, protection and improvement of livestock. Cows, bulls, bullocks and calves of cows are no doubt the most important cattle for the agricultural economy of this country. Female buffaloes yield a large quantity of milk and are, therefore, well looked after and do not need as much protection as cows yielding a small quantity of milk require. As draught cattle male buffaloes are not half as useful as bullocks. Sheep and goat give very little milk compared to the cows and the female buffaloes, and have practically no utility as draught animals. These different categories of animals being susceptible of classification into separate groups on the basis of their usefulness to society, the butchers who kill each category of animals may also be placed in distinct classes according to the effect produced on society by the carrying on of their respective occupations. The butchers who -slaughter cattle formed the well defined class based on their occupation. That classification is based on intelligible differentia and distinguishes them from those who kill goats and sheep and this differentiation has a close connection with the object sought to be achieved by the impugned Act, namely the preservation, protection and the improvement of our livestock. The attainment of these objectives may well necessitate that the slaughterers of cattle should be dealt with differently than the slaughterers of say, goats and sheep. The standing orders, therefore, in our view, adopt a classification based on sound and intelligible basis and can quite clearly stand the test laid down above.” 

In Devata Prasad Singh Chaudhuri & Ors. v. The Hon’ble the Chief Justice and Judges of the Patna High Court, AIR 1962 SC 201, Another Constitution Bench of Supreme Court, while dealing with the provisions of the Legal Practitioners Act, 1879, a preconstitution law, considered the correctness or effect of restrictions on the rights of a Mukhtiar to act or plead before the Civil Court, under Rule 2 of the Rules, framed under the provisions of that Act by the High Court and held that Sections 9 and 11 of that Act would have to be read together. It would be wrong to treat the mere right to practice conferred by Section 9 of the Legal Practioners Act as disassociated from the functions, powers and duties of Mukhtiar referred to in Section 11 of that Act. The right to appear before a court is controlled by these provisions. Primarily holding that -Rule 2 as enacted by the High Court was not in excess of the rulemaking power under Section 11 of that Act, this Court also heldthat the Mukhtiars cannot complain of any violation of their fundamental right to practice the profession, to which they have been enrolled under the provisions of that Act. In other words, the challenge on the ground of inequality and unreasonableness, both, were repelled by Supreme Court. 

There are certain legislations which restrict appearance of advocates before specialized or specific tribunals. These kinds of restrictions upon the right of the lawyers to appear before those tribunals have been challenged in the courts from time to time. The courts have consistently taken the view that limited restrictions are neither violative of the fundamental rights, nor do they tantamount to denying the equality before law in terms of Article 14 of the Constitution. 

In the case of H.S. Srinivasa Raghavachar v. State of Karnataka, (1987) 2 SCC 692, this Court was primarily concerned with the validity of Section 44(1) of the -Karnataka Land Reforms Amendment Act, 1974 which was challenged on the ground that it was ultra vires Articles 39(b) and 39(c) of the Constitution and was destructive of the basic structure of the Constitution. An ancillary question that fell for the consideration of this Court was where sub26 section (8) of Section 48 of that Act, which prohibited legal practitioners from appearing in such proceedings before the Tribunals, was repugnant to Section 30 of the Advocates Act, and Section 14 of the Bar Council of India Act. The challenge was primarily accepted by this Court on the ground that it was a case of lack of legislative competence, inasmuch as the State Legislature was not competent to make a law repugnant to the laws made by the Parliament pursuant to Entries 77 and 78 of List I of the Seventh Schedule to the Constitution. This Court directed that Section 48(8) of that Act would not be enforced against the advocates to prevent them from appearing before the Tribunal. This case, relied upon by the learned counsel for the appellant, is completely different on facts and in law. In the case in hand, the consistent position is that there is no challenge to the legislative competence in amending Section 129(6) of the Customs Act. The challenge is limited to the ground of its being ultra vires Articles -19(1)(g), 19(6) and 14 of the Constitution. Therefore, the counsel cannot draw any advantage from that case.

In the case of Paradip Port Trust, Paradip v. Their Workmen, AIR 1977 SC 36, this Court dealt with the right of the legal practitioners to represent employers before the Industrial Tribunal that too only with the consent of the opposite party and leave of the Tribunal. The restriction was limited in its scope and impact and this Court held that it was not violative of the right of the legal practitioners as they will have to conform to the conditions laid down in Section 36(4) of the Industrial Disputes Act, 1947. Refuting contentions that this provision would be repugnant to Section 30 of the Advocates Act, this Court held that the Industrial Disputes Act was a special piece of legislation with the aim of labour welfare and representation before the adjudicative authorities therein has been specifically provided for with a clear object in view.

In the case of Lingappa Pochamma Appelwar v. State of Maharashtra, (1985) 1 SCC 479, in somewhat similar circumstances relating to the provisions of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974, this Court clearly rejected the contention that an advocate enrolled under the Advocates Act, has an absolute right to appear before any of the courts and tribunals in the country. Though at that time Section 30 of the Advocates Act had not come into force, but still the Court felt that the right of an advocate to practice after being brought on the roll of the State Bar Council is, just what is conferred upon him under the Bar Councils Act, 1926 and therefore, Section 9(a) of the Maharashtra Restoration of Lands to Scheduled Tribes Act which placed that restriction was not unconstitutional or impinging on the rights of the advocates to practice. The Court also observed that it was well settled that apart from under the provisions of Article 22 of the Constitution, no litigant has a fundamental right to be represented by a lawyer in any Court.

In the case of Indian Council of Legal Aid and Advice v. Bar Council of India, (1995) 1 SCC 732, Supreme Court while holding that a prohibition against a person, more than 45 years of age being enrolled as an advocate was violative of Article 14 of the Constitution as being discriminatory and arbitrary, made some observations with regard to duties and functions of the advocates and Bar Councils, for the dignity and purity of the profession, which are worthy of being noticed and are accordingly reproduced : “3. It will be seen from the above provisions that unless a person is enrolled as an advocate by a State Bar Council, he shall have no right to practise in a court of law or before any other Tribunal or authority. Once a person fulfils the requirements of Section 24 for enrolment, he becomes entitled to be enrolled as an advocate and on such enrolment he acquires a right to practise as stated above. Having thus acquired a right to practise he incurs certain obligations in regard to his conduct as a member of the noble profession. TheBar Councils are enjoined with the duty to act as sentinels of professional conduct and must ensure that the dignity and purity of the profession are in no way undermined. Its job is to uphold the standards of professional conduct and etiquette. Thus every State Bar Council and the Bar Council of India has a public duty to perform, namely, to ensure that the monopoly of practice granted under the Act is not misused or abused by a person who is enrolled as an advocate. The Bar Councils have been created at the State level as well as the Central level not only to protect the rights, interests and privileges of its members but also to protect the litigating public by ensuring that high and noble traditions are maintained so that the purity and dignity of the profession are not jeopardized. It is generally believed that members of the legal profession have certain social obligations, e.g., to render “pro bono publico” service to the poor and the underprivileged. Since the duty of a lawyer is to assist the court in the administration of justice, the practice of law has a public utility flavour -and, therefore, he must strictly and scrupulously abide by the Code of Conduct behaving the noble profession and must not indulge in any activity which may tend to lower the image of the profession in society. That is why the functions of the Bar Council include the laying down of standards of professional conduct and etiquette which advocates must follow to maintain the dignity and purity of the profession.”

In Dr. Haniraj L. Chulani v. Bar Council, State of Maharashtra, (1996) 3 SCC 342 the Court held that, a person who is otherwise qualified to be admitted as an advocate, but is either in full or part time service or employment, or is engaged in any trade, business or profession, shall not be admitted as an advocate, was a restriction imposed by the Bar Council of State of Maharasthra and Goa. Upon challenge, this Court had taken the view that under Article 19(1)(g), all citizens have a right to practice any profession or carry on any occupation, trade or business. The term ‘any profession’ may include even plurality of professions. However, this is not an absolute right and is subject to reasonable restrictions under Article 19(6). It cannot begainsaid that litigants are also members of general public and if in their interest, any rule imposes a restriction on the entry to the legal profession and if such restriction is founded to be reasonable, Article 19(1)(g) would not get stultified.

Imposition of restrictions is a concept inbuilt into the enjoyment of fundamental rights, as no right can exist without a corresponding reasonable restriction placed on it. When the restrictions are placed upon the carrying on of a profession or to ensure that the intent, object or purpose achieved thereby would be enhancing the purity of public life, such object would certainly be throttled if there arose a situation of conflict between private interest and public duty. The principle of private interest giving way to public interest is a settled cannon, not only of administrative jurisprudence, but of statutory interpretation as well. Having regard to the prevalent values and conditions of the profession, most of the legal practitioners would not stoop to unhealthy practices or tactics but the Legislature, in its wisdom, has considered it desirable to eliminate any possibility of conflict between the interest and duty and aimed at achieving this object or purpose by prescribing the requisite restrictions. With the development of law, the courts are expected to consider, in contradistinction to private and public interest, the institutional interest and expectations of the public at large from an institution. These are the balancing tests which are applied by the courts even in the process of interpretation or examining of the constitutional validity of a provision.

An objective analysis of the above principles makes it clear that except where the challenge is on the grounds of legislative incompetence or the restriction imposed was ex facie unreasonable, arbitrary and violative of Part III of the Constitution of India, the restriction would be held to be valid and enforceable.